Railways: Network Rail
	 — 
	Question

Baroness Scott of Needham Market: To ask Her Majesty's Government whether they advise Network Rail on the strategic impact of its engineering works programme.

Lord Adonis: My Lords, the Government do not provide such advice. This is an operational matter for Network Rail, overseen by the independent Office of Rail Regulation. As part of the Periodic Review 2008 final determinations accepted by Network Rail on 5 February, the Office of Rail Regulation has set targets and provided funding for Network Rail to reduce the impact of its engineering works on users of the railway.

Baroness Scott of Needham Market: My Lords, is the noble Lord aware that the weekend after next both the east coast and the west coast main lines will have severe delays due to engineering works and that it is not uncommon for two of the three routes into East Anglia also to be subject to delays? Who speaks on behalf of passengers when the overall network delays are simply unacceptable?

Lord Adonis: My Lords, I understand the noble Baroness's point about inconvenience to passengers. It is precisely for that reason that the Office of Rail Regulation, which is the body responsible for ensuring that the voice of passengers is conveyed loud and clear to Network Rail, has agreed with Network Rail that over the next five years there will be a reduction of more than one-third in the disruption caused to passengers by engineering work. Of course, it is not possible to maintain the railway without engineering work, which will cause some disruption to passengers, but we expect that the target of a one-third reduction in that disruption will make a big difference to the experience of members of the travelling public.

Lord Hanningfield: My Lords, the Government should think again. The noble Lord referred to the Office of Rail Regulation. We have the Office of Rail Regulation, we have the operators, we have Network Rail and we have the passengers. There needs to be more connect between that lot. The passenger loses out all the time. Will the Government think more about how those four bodies can co-operate more fully?

Lord Adonis: My Lords, I hesitate to point out who privatised the railways in the first place, which caused a lot of the disconnections to which the noble Lord referred. However, there is no absence of responsibility in this matter. The Office of Rail Regulation is clearly charged with ensuring that the passenger voice is heard loud and clear and it establishes the regime within which Network Rail works. As I say, it has set a target for a substantial reduction over the next five years in the disruption caused to passengers by engineering work.

Lord Tomlinson: My Lords, does my noble friend agree that the Network Rail report on corporate governance presented to Network Rail members last week was suppressed and not publicly published, to the detriment of taxpayers and railway travellers alike, and that that entirely justifies the criticisms made by the People's Rail campaign?

Lord Adonis: My Lords, I do not believe that it has been suppressed; a decision has not yet been taken to publish it. However, my noble friend will be aware that there are more than 100 members of Network Rail. In my experience in this game, the prospects of keeping that document private for long are not great.

Lord Berkeley: My Lords, is my noble friend aware that last week there was a lot of publicity about Network Rail directors' bonuses? I declare an interest as chairman of the Rail Freight Group and as one of the 100 members of Network Rail. Does he believe that the proposed level of bonus is satisfactory and do the Government agree with it, on the basis of either Network Rail's performance or the current economic climate?

Lord Adonis: My Lords, the setting of bonuses is entirely a matter for Network Rail, not the Government. However, I am sure that that House would expect Network Rail's remuneration committee to be mindful of the public mood on bonuses and not to award bonuses that the travelling public would consider unjustified by their own experience of Network Rail's performance. This includes the hundreds of thousands of the travelling public on the west coast main line whose services were cancelled or massively disrupted in the new year by poor maintenance of the overhead wires.

Lord Bradshaw: My Lords, standard railway practice is that first you plan your engineering work and then you plan your timetable, with engineering work planned so that one strategic route between all points is kept open. How will the present shambles of an organisation that runs our railway system get back to the established practice?

Lord Adonis: My Lords, the performance of Network Rail has been improving substantially in recent years after, as the noble Lord put it, the shambles that it inherited from the privatised Railtrack. In addition to the near-30 per cent improvements in efficiency that Network Rail has achieved over the past five years, the Office of Rail Regulation is requiring Network Rail to make a further 25 per cent improvement in efficiency over the next five years. That will be achieved only if it plans its engineering work much more effectively.

Baroness O'Cathain: My Lords, I hope that the Minister can at least confirm to me that he has overall responsibility for the railways, instead of having someone doing this, someone doing that and someone doing the other. Does he know of any attempt to find out what happens with engineering works in other countries that seem to run efficient railways? For example, is there any night working? Let me just explain this. We live on what is known as the misery line—Southern railway—which is usually closed for two weekends a month. That means that it will never increase passenger numbers at weekends because no one knows whether the trains are running or not.

Lord Adonis: My Lords, the Office of Rail Regulation has looked at the practice of other countries, some of which, as the noble Baroness rightly says, are more efficient in the way in which they conduct their engineering works than is Network Rail, to see what lessons can be learnt. Partly as a result of that benchmarking exercise, new targets have been set for Network Rail's overall efficiency and for the reduction expected in the disruption caused to passengers by engineering work.

Lord Smith of Clifton: My Lords—

Lord Stoddart of Swindon: My Lords, the Minister rightly criticised the Conservatives for privatising the railways, but he must be aware that the present Government have had 12 years to renationalise the railways, as some of us suggested and demanded in the early years of the Government. There is, of course, still time between now and next June for a nationalisation Bill to come forward.

Lord Adonis: My Lords, we created Network Rail in order to improve on the performance of the privatised Railtrack. Performance has been substantially improving and I do not believe that it is in the public interest that there should be further big changes to the organisation of the railway industry at present. It is important that those who are responsible get on with the job and do it properly. Network Rail's performance has been improving substantially in recent years, but it needs to continue improving.

Manufacturing: Job Losses
	 — 
	Question

Lord Sheldon: To ask Her Majesty's Government what assessments they have made of job losses in small and medium-sized manufacturing companies in the first three months of 2009.

Lord Mandelson: My Lords, data on employment in small and medium-sized manufacturing companies in the first quarter of 2009 are not yet available. However, the Government are acutely aware of the impact that the global economic downturn is having on manufacturers. That is why we have acted to stabilise the banking system and preserve the flow of credit in the economy. Where jobs have been lost, we are providing targeted support, together with regional agencies and Jobcentre Plus.

Lord Sheldon: My Lords, I thank my noble friend for that reply. We have been among the largest employers in manufacturing, but the situation has now changed quite considerably and the problem is in maintaining skills at a time of rising unemployment, particularly in the engineering and motor car industries, which are particularly prominent here. There is of course the question of the depreciation of sterling. That should have been a considerable advantage to us but we do not seem to have seen it so far. We shall need to watch that carefully. What action should we now take to retain our skilled employees over the difficult time that lies ahead?

Lord Mandelson: My Lords, my noble friend makes an extremely good point about skills. It is very important that we do all that we can as a Government to support manufacturing companies through this recession so that they do not, as a result of a temporary loss of demand, cut out capacity capability, be it a plant or skilled employees, as that would leave them at a disadvantage when the upturn comes. That is why we are providing the support for skills that is essential for UK manufacturing both to compete globally and, in particular, to get through the recession. This includes a significant expansion of the Train to Gain service, which will provide more than £1 billion of funding for employer-focused skills during the coming years, and other customised packages, which the Department for Innovation, Universities and Skills is discussing with the key manufacturing employers, most recently Corus and Nissan.

Lord Forsyth of Drumlean: My Lords, instead of spending £12.5 billion cutting VAT, would the Government not have been better advised to cut national insurance—a tax on jobs—which they have increased? Is it any surprise that people are being laid off from work when the Government have made the costs of employment higher?

Lord Mandelson: My Lords, I do not agree with the noble Lord on his original point. The aim of cutting VAT was to get as substantial and quick a stimulus as possible for demand into the economy. I do not believe that alternative measures, notably changes in tax, would have had the same effect and certainly not as quick an effect as the reduction in VAT, which kicked in a week later.

Lord Razzall: My Lords, does the Minister accept that I am second to none in my admiration for his efforts to get the banks lending again, let alone in my admiration for the Prime Minister in, as he would put it, saving the world? However, does he not accept that what SMEs now require is not exhortation and policy from this Government but results?

Lord Mandelson: My Lords, I agree with the noble Lord, which is why I am pleased to say that the enterprise finance guarantee, which is a 75 per cent guarantee provided by the Government for lending made to small and medium-sized enterprises by banks operating the scheme, has shown considerable success since it went live on 14 January. More than 400 loans have been offered under the scheme, amounting to in the region of £40 million. At that rate, there will be no shortage of applications or offers for the £1 billion scheme as a whole.

Lord Brookman: My Lords, as someone who has, as have others on these Benches, worked in manufacturing in the steel industry, I can tell my noble friend, who mentioned Corus, that there is great concern among trade union representatives in that company because the redundancy figures are increasing week on week. From the 2,500 originally mentioned, as I understand it, the figure has risen by a further 1,500. I remind my noble friend that there was a time when many in this country thought that there was no future for manufacturing. Indeed, some argued that we were in a post-industrial society. I am sure that he does not agree with that.

Lord Mandelson: My Lords, my noble friend is absolutely right: I do not agree with that sentiment one jot. Indeed, I say in every speech I make that, far from being a post-industrial economy, as some people like to describe our country, we are nothing short of being still the sixth largest manufacturing economy in the world.
	I have not been informed of the figures that my noble friend refers to in relation to Corus. I know that the management of Corus decided to make changes both to secure the company's position when the upturn comes and to bring about necessary restructuring, which would have had to have taken place regardless of the recession. However, I will make inquiries because I am concerned that a greater number of redundancies may be made than those of which I was originally informed.

Lord De Mauley: My Lords, the Secretary of State says that the Government are doing all they can to get help to businesses as quickly as possible, yet, despite his department having said in January that the business lending guarantee scheme, which is so urgently needed by so many small and medium-sized enterprises, would be operational by 1 March, it is not. The department now cannot even give a date by which it will be. Indeed, the Government are only now starting discussions with lenders over guaranteed pricing. Given that performance, how can small businesses have any confidence in anything that the Government say?

Lord Mandelson: My Lords, they would have more confidence if the noble Lord were to get his facts slightly straighter than he did in his question. I think that he must be referring not to the business lending guarantee, but to the working capital scheme, which is not a scheme for making direct loans under government guarantee to individual businesses. None the less, we are expecting, as I announced in January, to reach agreement with banks to boost business lending through the scheme. We are currently working with three major banks on their potential loan portfolios. We are awaiting state aid clearance by the European Commission, and I expect that to be forthcoming in the next couple of weeks or so. That is not much beyond what I originally said in January.

Media: Ownership
	 — 
	Question

Baroness Rawlings: To ask Her Majesty's Government whether they will ask Ofcom to investigate any sale of major United Kingdom media companies to assess the suitability of potential future owners.

Lord Mandelson: My Lords, as Secretary of State I have the power to intervene in any media or newspaper merger which I believe gives rise to specific public interest issues, such as concerns about accurate presentation of news or free expression of opinion in newspapers. Where such an intervention is made, Ofcom must provide a report on the impact of the merger. This provision exists alongside other statutory rules governing ownership of media enterprises and on accurate reporting and impartiality in broadcasting.

Baroness Rawlings: My Lords, I thank the Minister for his detailed Answer. Have the Government received any information from Ofcom or any other sources that would lead them to give credence to the recent rumours that Al-Jazeera is interested in purchasing ITV or Channel 4? Furthermore, can the Minister tell us whether the Government are concerned about the possibility of those major media outlets and others in the print media disappearing further and further from British hands?

Lord Mandelson: My Lords, I have not heard any information about such an exotic proposal as Al-Jazeera taking over ITV, and I will be keeping my ears open. I assure the noble Baroness that I will be eternally vigilant in pursuit of the powers that I have, but they are necessarily limited powers. They do not extend to any member of the Government being able to act on personal whim or prejudice. We have to have a clear public interest case made to us as the basis for any intervention, but of course I would be open to receiving such concerns in the public interest, should they arise.

Lord Razzall: My Lords, will the Minister allow me to slightly widen the Question from the noble Baroness away from the return of Sir David Frost to our television screens to the wider question of the structure of broadcasting generally? Will he accept that we cannot open any Sunday paper without reading speculation about the future of ITV, Channel 4, or what the Government are going to do about preserving public service broadcasting outside the BBC? I had not actually seen the Al-Jazeera story. When does he feel that the Government can give a clear statement of their policy in this area?

Lord Mandelson: My Lords, the Government offered an initial and provisional outline of their views when my noble friend Lord Carter published the Digital Britain report. That is an interim report: the Government will give further consideration after consultation to what conclusions we eventually reach. In the mean time, all options relating to the future ownership of the media outside the BBC remain on the table, but I assure noble Lords that at the heart of the Government's consideration of those matters will be our determination to maintain a strong sense and basis of public service at the heart of our broadcasting, whatever future ownership structure emerges.

Lord McNally: My Lords, the situation is rarely as serene as the Minister implies. Does he recall that when the Times and satellite broadcasting were under threat, the Administration of the day waived the protection in legislation at the time to allow those deals to go through? If one of our major broadcasters or newspapers were in similar crisis, he would be under similar pressure simply to save the broadcaster or newspaper under threat.

Lord Mandelson: My Lords, I can imagine the pressure that would be brought to bear on the Secretary of State in such circumstances, but the noble Lord can be assured that I would be neither serene nor complacent.

Lord Campbell-Savours: My Lords, before alarm bells ring in the ear of my noble friend on the prospect of Al-Jazeera having an interest in taking over ITV, will he bear it in mind that Al-Jazeera was the only thoroughly objective news-gathering service during the course of the recent dispute in Gaza?

Lord Mandelson: My Lords, I described the possibility as exotic, not objectionable. I hear what my noble friend says and will take that into account should any eventuality arise concerning that broadcasting organisation in the future.

Lord Roberts of Conwy: My Lords, were the Government consulted about the recent takeover of the Evening Standard by the Russian?

Lord Mandelson: My Lords, the Government were not consulted as such. The circumstances of Mr Lebedev's purchase of the London Evening Standard are, I gather, that after making considerable profits on the paper, the previous owners made it clear that they would close it if the transfer was not made. Mr Lebedev seems to have been the only option for keeping the paper alive. I think that we would all agree that maintaining the London Evening Standard in existence is in the public interest and that of journalism in this country. It is perhaps not ideal but what is ideal these days in the newspaper world? We can only wonder what Vere Rothermere would have made of it, but that is now a matter only for speculation.

Lord Ryder of Wensum: My Lords, are the powers vested in the Enterprise Act sufficient for the Secretary of State in cases of this kind?

Lord Mandelson: My Lords, I think that the powers are sufficient. But remember that the powers to which the noble Lord refers in the Enterprise Act are not the only ones open to the Government; there are also powers concerning competition and dominance in the media market, something which we have to keep under review as cross-ownership between local and regional newspapers and radio and television might arise, because the commercial and market circumstances for this sector are not what they were in the past and we may need to keep an open mind to certain adjustments. But, yes, I think that the powers we have are sufficient.

Iraq: Ashraf City
	 — 
	Question

Baroness Harris of Richmond: To ask Her Majesty's Government what representations they have made to the Government of the United States about the safety of Iranian residents at Camp Ashraf in Iraq to prevent them being forcibly removed.

Lord Malloch-Brown: My Lords, responsibility for Camp Ashraf passed to the Iraqi authorities on 1 January. We remain concerned that the rights of the residents are fully respected. The Iraqi Ministry of Human Rights visits the camp on a regular basis and has delivered verbal assurances to a representative body of residents about continued observance of their rights. We have also discussed our concerns with the US, which is satisfied that the Iraqi authorities are aware of their responsibilities.

Baroness Harris of Richmond: My Lords, I am most grateful to the Minister for that response. However, is he aware that the Iranian national security adviser has recently stated:
	"Over 3,000 inhabitants of Camp Ashraf have to leave Iraq and the camp will be part of history within two months",
	even though all the residents in Camp Ashraf are considered under the Fourth Geneva Convention as protected persons? Who will oversee their safety?

Lord Malloch-Brown: My Lords, I am not sure whether the noble Baroness meant the Iranian national security adviser or the Iraqi one.

Baroness Harris of Richmond: Iranian.

Noble Lords: Iraqi.

Lord Malloch-Brown: My Lords, the Iraqi one certainly made a statement to the effect that Camp Ashraf would not stay open indefinitely and that third-country settlement or voluntary repatriation might become necessary. In a sense, it is the Iraqis who have authority over this group, not the Iranians, and therefore it is their position that we should continue to monitor. At the moment, we believe that they understand their responsibilities. They are allowing the ICRC access and it is reassured that, at the moment, the treatment is appropriate.

Lord Corbett of Castle Vale: My Lords, is the Minister aware of demands by the Iraqi Prime Minister and the Iraqi President, alongside the Iraqi national security adviser's threat, that PMOI members should be removed from the base at Ashraf, which would be a direct breach of their human rights? Will he confirm—I think that he did in his Answer to the noble Baroness—that we still have a residual responsibility in this matter?

Lord Malloch-Brown: My Lords, let me be clear that this was a US responsibility handed over the Iraqi authorities on the basis of assurances sought and received from the Iraqis that the rights of this group would be fully respected. We have certainly gone out of our way to get confirmation from the US and indeed from the Iraqis that this is the case.

Lord Waddington: My Lords, surely the noble Lord will agree that Ashraf City has throughout been the responsibility of every party to the coalition and it simply cannot be right to say that it was an American responsibility alone to see that the rights of the citizens of Ashraf under international law were respected. Surely the British Government have a joint responsibility for everything that has happened since 2003 and a duty to see that the rights of the people in Ashraf under international law are respected. Finally, is he aware that the Iranian Government have boasted recently of an agreement with the Iraqi Government to expel the people of Ashraf from Iraq? Can I have an assurance that Britain will not simply wash its hands of the whole of this matter and will try to prevent this happening?

Lord Malloch-Brown: My Lords, we have rehearsed in this Chamber the reasons why we consider this principally a US responsibility. We have equally accepted that of course it is of concern to us, and we shall press the Iraqi authorities, the US and the ICRC to continue to ensure that the rights of this group are respected and any closure of the camp would take place in a way that respected those rights.

Lord Archer of Sandwell: My Lords, can my noble friend confirm that Iraq was invaded by a multinational force of which the United Kingdom contingent formed an integral part and that therefore the United Kingdom assumed the responsibility of an occupying power to protect people who were within that area? Is it suggested that the UK could divest itself of that responsibility simply by announcing that it passed that responsibility to someone else?

Lord Malloch-Brown: My Lords, the point to my noble and learned friend is rather simple. The area where these individuals were located was under US control. As part of the coalition we accept a concern and a responsibility but it was always clear that the primary responsibility was held by the US, which provided security for this group and satisfied itself that it could hand over those responsibilities to the Iraqi authorities.

Lord Dholakia: My Lords, the Minister did not mention the role the United Nations could play in this matter and, more importantly, the concern that has been expressed by PMOI, which has now been removed from the proscribed list of organisations. Would he not consider it wise to invite Mrs Rajavi to meet the Foreign Office and brief it about issues and also to note its concern about what the British Government can do?

Lord Malloch-Brown: My Lords, as I have frequently assured this House, we are fully respectful of the decision of the courts and we are delighted that at the end of January this group was de-listed. That does not mean necessarily that Her Majesty's Government accept that this group is committed to democratic means of seeking power or that necessarily individuals would be able to win the right to visas and be able to visit the country.

Business of the House
	 — 
	Motion on Standing Orders

Moved By Baroness Royall of Blaisdon
	That Standing Order 41 (Arrangement of the Order Paper) be dispensed with on Thursday 5 March to allow the two Motions in the name of Lord West of Spithead to be taken before the debate in the name of the Earl of Sandwich.

Baroness Royall of Blaisdon: My Lords, I beg to move the Motion standing in my name on the Order Paper. In moving this Motion, I should say a few words so that the House is fully aware why I am proposing it. The Motion would set aside Standing Order 41, which gives general debates precedence on a Thursday. This would allow the two Motions to approve Home Office instruments this Thursday to be taken before the balloted debates. This change is being proposed following discussions through the usual channels, which concluded that in this case such a change to the business might be for the general convenience of the House. I understand that the noble Earl, Lord Sandwich, and the noble Baroness, Lady Greengross, in whose names the balloted debates stand, have consented to the proposals subject to the agreement of the House. I am grateful to them for their understanding.
	Motion agreed.

Unit Trusts (Electronic Communications) Order 2009

Open-Ended Investment Companies (Amendment) Regulations 2009

Mutual Societies (Transfers) Order 2009

Government Resources and Accounts Act 2000 (Audit of Non-profit-making Companies) Order 2009

Child Trust Funds (Amendment) Regulations 2009

Social Security (Contributions) (Re-rating) Order 2009

Social Security (Contributions) (Amendment No. 2) Regulations 2009
	 — 
	Motions to Approve

Moved By Lord Davies of Oldham
	That the draft orders and regulations laid before the House on 8 and 16 December 2008 and on 19, 26, 27 and 28 January 2009 be approved.
	Relevant Documents: 2nd, 3rd, 4th, 5th and 6th Reports from the Joint Committee on Statutory Instruments, Considered in Grand Committee on 25 February.
	Motions agreed.

Contracting Out (Highway Functions) Order 2009

Road Safety (Financial Penalty Deposit) (Appropriate Amount) Order 2009
	 — 
	Motions to Approve

Moved By Lord Tunnicliffe
	That the draft orders laid before the House on 21 and 26 January be approved.
	Relevant Documents: 4th and 5th Report from the Joint Committee on Statutory Instruments, Considered in Grand Committee on 25 February.
	Motions agreed.

Geneva Conventions and United Nations Personnel (Protocols) Bill [HL]
	 — 
	Third Reading

Bill passed and sent to the Commons.

Borders, Citizenship and Immigration Bill [HL]

Bill Main Page
	Copy of the Bill
	Explanatory Notes
	Amendments
	3rd Report from DP Committee
	5th Report from Constitution Committee

Committee (Second Day)

Amendment 45
	 Moved by Lord Avebury
	45: Before Clause 37, insert the following new Clause—
	"Probationary citizenship leave
	(1) A person with probationary citizenship leave shall be treated as a person settled in the United Kingdom for the purposes of all regulations made under—
	(a) the Health Services and Public Health Act 1968 (c. 46);
	(b) the Education (Fees and Awards) Act 1983 (c. 40);
	(c) the Education and Libraries (Northern Ireland) Order 1986 (S.I. 1986/594 (N.I. 3));
	(d) the National Health Service (Charges to Overseas Visitors), Regulations 1989 (S.I. 1989/306);
	(e) the Teaching and Higher Education Act 1998 (c. 30);
	(f) the Education (Student Support) Regulations (Northern Ireland) 1998;
	(g) the Learning Skills Act 2000 (c. 21);
	(h) the Higher Education Act 2004 (c. 8); and
	(i) the Higher Education (Northern Ireland) Order 2005 (S.I. 2005/1116 (N.I. 5));
	(2) In section 115 of the Immigration and Asylum Act 1999 (c. 33) (exclusion from benefits), in subsection (9) after "EEA state" insert "or a person with probationary citizenship leave"."

Lord Avebury: In moving Amendment 45 in my name and that of my noble friend, I shall speak also to Amendment 105A. As the Minister is aware, we do not like the term "probationary citizenship" because the status that it covers is in reality an extension of temporary residence leave, prolonging the time that it takes to get to applying for actual citizenship by a year and in the meanwhile imposing certain restrictions on access to services that did not previously apply to those who were on indefinite leave to remain.
	We are grateful to the Minister for providing us with a list of the benefits that may not be accessed by a person who is given probationary citizenship leave, or PCL as I shall call it from now onwards, which those on indefinite leave to remain, ILR, have been able to access in the past. As the note accompanying the list makes clear, making a holder of PCL a person "subject to immigration control"—the first of many terms of art used in this Bill—within the meaning of the Immigration and Asylum Act 1999 means that he is subject to the condition that he should not have recourse to public funds. In practice, that means that he is ineligible for any of 15 different types of benefit that are available to those on ILR.
	Apart from that, the overseas rate of fees in further and higher education will apply to holders of PCL who are over the age of 18 except in the one case of English for the speakers of other languages, which is to be charged at the home rate on the sensible ground that it will help migrants to acquire the skills that they will need to support their progress towards citizenship. Logically, precisely the same argument applies to every other course of further and higher education, and I invite the Minister to tell us why a course in, say, English history or on local authority management would not equally assist the probationary citizen to make himself useful.
	Amendment 105A deals with the case of a person who becomes homeless through no fault of his own during his passage through the probationary citizenship phase. Under the Bill he is given none of the assistance that is normally extended to persons who become homeless. We ask the Minister why this should be so. If someone who is in the middle of a probationary citizenship phase becomes homeless—let us say that a spouse who is attacked by a violent partner becomes homeless during that part of her stay—why is she ineligible for any assistance? That should be added to the list of exceptions in the Bill. I beg to move.

Lord Brett: I am afraid that I must resist this amendment. It is a fundamental tenet of our proposed reform of the path to citizenship that the rights and benefits of citizenship are reserved for those who have earned the right to them. Migrants earn those rights and benefits by completing both the temporary residence and the probationary citizenship path.
	We recognise that migrants make a significant contribution to this country both economically and in social terms. Nevertheless, it has been a long-standing policy that those entering the United Kingdom on the work or family routes should be expected to support themselves without access to benefits. This supports a clearly held public view that migrants should make an economic contribution and should not be a burden on the state. This policy should be strengthened and clarified so that everyone is clear that full access will be withheld until a migrant completes the path to citizenship.
	Of course, this does not apply to migrants who are on the protection route. It is right, given the special circumstances that led people on this route to come to the UK, that they should be able to access all benefits immediately. The restrictions on access to benefits and services at the probationary citizenship stage will apply only to migrants on the work route—that is, those highly skilled and skilled workers under tiers 1 and 2 of the points-based system—and the family route, for family members of British citizens and permanent residents.
	Further, all migrants, including those on the family and work routes, will have full access to national insurance contribution-based benefits on the same basis as British workers. These benefits are contribution-based jobseeker's allowance, incapacity benefit, contributory employment and support allowance, retirement pension, maternity allowance and bereavement benefit. This applies equally during the probationary period of citizenship. We continue to believe that full access to benefits should normally be withheld until a migrant has earned the right to British citizenship or permanent residence.
	The amendment is also seriously flawed. While it would give probationary citizens access to social housing and homelessness assistance in Scotland and Northern Ireland, it would not do so in England or Wales. Nor is it sufficient to address the different positions that exist in respect of education and healthcare in England, Scotland, Wales and Northern Ireland. For example, the amendment cites only NHS regulations that apply in England and Wales.
	The noble Lord raised two points, one in relation to higher education and the second in relation to homelessness. In both cases the answers are simple but I would prefer to put them in writing to explain more clearly to him why what he suggests is not considered appropriate. If the noble Lord is content with that, I ask him to withdraw the amendment.
	I turn to Amendment 105A. I hope that noble Lords will forgive me; my paper-juggling skills are not great. I beg your Lordships' pardon. I must admit to a certain degree of defeat.

Baroness Hayman: If it will assist the House, it is possible to return to Amendment 105A in its place on the Marshalled List later in the debate if it is not possible to cover it now.

Lord Brett: I ask noble Lords if that would be possible.

Lord Avebury: I am sure that we can do that. It is an important point. While I entirely accept the noble Lord's contention that it has always been the case that a person who is on these routes should be expected to support themselves without access to public funds, there must surely be the occasional exception to that. Anybody with a spark of humanity would say that someone who is in the middle of this phase, and who becomes unintentionally homeless through no fault of their own, would look to the public purse for some sort of help. That was the point that I was trying to make. However, I can see that I am not going to get anywhere with the main argument.
	I ask the Minister only one further question: what is the real reason for the change in policy? A person was, for the first five years, a worker, or for two years a family member. These periods have suddenly changed. In every case, the time that it takes to become a citizen has become longer. Why do the Government think that that is a better way of getting people to settle in the community?

Lord Brett: I have frequently said that the Government believe that we need to have greater integration of citizens and provide both a strengthening of the route and an incentive to accelerate it. In terms of strengthening, we are now bringing conformity to the two separate groups of those who choose not to take active citizenship, and therefore wait the additional time, and those who take active citizenship and gain the advantages thereto.

Lord Avebury: For the time being, I can see that we are not going to get very far with these amendments. I beg leave to withdraw Amendment 45.
	Amendment 45 withdrawn.
	Clause 37: Application requirements: general
	Amendment 46
	 Moved by Lord Avebury
	46: Clause 37, page 27, line 6, after first "the" insert "average"

Lord Avebury: The first amendment in the group maintains the current position whereby the maximum permitted absences from the UK during the qualifying period for naturalisation is calculated as an average over the total of the qualifying period. This will ensure that a person who is absent in a particular year for more than 90 days for legitimate reasons of business, family crisis or illness abroad does not have to restart the clock on the qualifying period upon his return. It addresses one aspect of the problem that was identified by the noble Baroness, Lady Hanham, when she spoke of migrants who,
	"will end up in a game of snakes and ladders, by which they may fall down and have to start the process all over again".—[Official Report, 11/2/09; col. 1135.]
	The current rules, which are set out in chapter 18 of the nationality instructions, allow for an exceptional absence for business or family reasons to be offset by shorter periods of absence in other years, but the Bill requires that the 90-day limit be rigidly observed in each year of the qualifying period. For example, a tier 1 migrant employed by a financial services company travelled overseas extensively to secure business, clocking up 150 days in the first year of his stay in this country. This was not a problem if the average for the whole of the qualifying period did not exceed 90 days, but he will no longer be able to do that.
	We understand that the Government are against the amendment because they think that a fixed 90-day limit will promote integration. As far as we are aware, there is no research to show that migrants who relied on averaging over the many years that it has been in force are less integrated than others who had kept within the 90-day limit for each individual year. If the Minister has any research on the matter, perhaps he will enlighten us. Conversely, as the effect of the Government's proposal is that a person who is unavoidably absent for more than 90 days has to start the qualifying period again from zero, that person will take much longer to become integrated.
	Our second amendment provides that where a person spends two periods of time in the UK with a qualifying immigration status separated by a period of lawful but not qualifying immigration status, then the two qualifying periods can be aggregated for the purposes of the calculation. An example of how this might operate is that of a worker who, after 18 months in a job, takes a year off to do a full-time MBA degree and then returns to his former or to another employment. Without the amendment, that first 18 months would not count towards the qualifying period because the time spent on the MBA, although it is a lawful immigration status, is not a qualifying immigration status within the meaning of Clause 37(11).
	The Immigration Law Practitioners' Association cites the case of a person who studied in the UK for three years and then worked for a single employer for a month short of five years, when at that point she was made redundant. Because she had a three-month notice period, the employer wrote in support of her ILR application and it was successful. But if the studies, instead of being at the start of the time she was spending in the UK had been in between two periods of work adding up to the same total, she could not have succeeded if this Bill had been then in force.
	Amendment 58 makes the same point about averaging in Clause 38 but deals with family members. It is even more likely that a spouse or civil partner would have a family emergency in his country of origin which requires him to be absent for a period of more than 90 days than a worker whose job could be at stake as a result of the long break, but the arguments are much the same. I beg to move.

The Earl of Sandwich: I want to say one or two words about refugees in this context, although my noble friend Lord Hylton will speak about them later on. At Second Reading I mentioned the concern expressed by the United Nations High Commissioner for Refugees and others that the new qualifying period, which is to be extended to three years, should not apply to genuine refugees. In their case, the period ought to start from the first application for entry. An additional probationary citizenship period prior to qualification for naturalisation would leave many of them in a state of unresolved nationality for well beyond 10 years. As a matter of best practice, these delays appear unsatisfactory for those people deemed in need of international protection.
	I do not like the term "probationary citizenship" since it creates a second-class category from which migrants and refugees, tripped up by these regulations, may never escape. In the case of migrants, I hope that the Minister will agree with the noble Lord, Lord Avebury, that the clause allowing leave up to three months in the year is unnecessarily restrictive. Migrants, by their nature, may have good reasons to return to their first home for long periods even though they have established strong ties with the UK. There is also a potential conflict with the ECHR and the 1997 European Convention on Nationality. What will happen to existing migrants approaching the end of their limited leave who are ready and entitled to apply for indefinite leave? Will their rights be safeguarded or will they have to go backwards to probationary citizenship?
	The special category of recognised refugees resettled under the Gateway Protection Programme will surely not have to spend more than five years. The Minister will be aware that the majority of people in this category will already have been recognised by the United Nations for at least five years before their resettlement. The programme provides for this special category of people selected outside the UK by our embassy staff from the group of UN-registered refugees now in third countries. The UK has only recently joined this programme. I have had some experience of this and know how rigorous the selection process is, so I would be grateful for the reassurance. I recognise that this group of refugees comes up in later amendments but I wanted to put this on the record now.

The Lord Bishop of Norwich: I support this amendment. It is not hard to understand why those who wish to reside here permanently should have to show that they are committed to the United Kingdom, but that is surely demonstrated by a wholehearted commitment to its values and culture. The travel restrictions in Clause 37 could conflict with this. A lot of charitable and relief organisations employ migrants seeking indefinite leave to remain. Those migrants often have the linguistic or specialist skills needed by agencies engaged in international development or relief. Church Communities UK gave a good example in its briefing of a Korean member who speaks Thai and was sent to Thailand for nine months to assist in a school that had been destroyed by the tsunami. She did this while seeking indefinite leave to remain. Her commitment to the culture and values of this country seems self-evident and is embraced by the self-giving action that she undertook as a result of the work of that agency. A law of unintended consequences seems to be at work here, which is why this amendment is so valuable.

Baroness Howe of Idlicote: I support the amendment as well. I will not go into the details of some of the other issues that I also support, because, as my noble friend Lord Sandwich said, they are coming up at a later stage. But the points that he and the noble Lord, Lord Avebury, made deserve serious consideration and change.

Lord Brett: Our principal aim is to reform the path to citizenship by creating three clear routes to achieving it, and to ensure that it is earned. The three routes are clear: work, family and the protection route. We require migrants to pass through successive stages on their journey to citizenship, and at each stage they will need to demonstrate that they have earned the right to progress. That supports the key principle that rights are matched by responsibilities.
	With regard to the noble Lord's first amendment, I cannot support the notion of an average calculation of absences over the qualifying period, but I can advise that we will not examine that requirement too closely where the absences are in the earlier part of the probationary period. However, as I have said, we require British citizens to demonstrate clearly that they have a close connection and a continuing relationship with the UK and intend to regard the UK as their home. We believe that that can be demonstrated by migrants spending the overwhelming majority of their time in the UK during their qualifying period. We consider that that encourages integration more than an individual spending a large part of their time abroad. If we applied an average of absences over a six-year period, that could in theory allow someone to be absent for up to 540 days in one go, yet still qualify for naturalisation. We do not consider that this is the best way for a migrant to demonstrate a close connection.
	Under our proposals, migrants will be able to spend one-quarter of each year of their qualifying period outside the UK and still qualify for British citizenship. We feel that that is a more than adequate provision. As I said, we will not examine the requirement too closely where the absences take place in the early part of the qualifying period—that is, in the entry into the probationary citizenship stage, which has already been examined. We are not concerned about absences from the UK before the start of the qualifying period.
	We want—I think this meets the point made by several noble Lords—to avoid a system that penalises those who we want to stay here from being able to because they have exceeded the set limit by a few days, or who may have justifiable reasons to explain their absence. The Bill therefore provides a discretion to allow the Secretary of State to overlook periods of absence that exceed 90 days in a year in the special circumstances of a particular case. Cases cited in the discussion of this clause would provide some of the basis for that kind of discretion.
	We will continue to expect migrants to justify large absences. In such cases we would expect the applicant to demonstrate close links with the UK in terms of length of residence and the presence of home, family and estate in the UK. We would also look at the reasons for absences.

Baroness Falkner of Margravine: I have listened carefully to the Minister. As he knows, my name is also attached to the amendment. I wonder if I understood him correctly when he said that the Secretary of State will have discretion to overlook the requirement for no more than 90 days' absence per year. I note what he says about integration, along with his calculation that it could end up being 540 days. He is implying a level of flexibility. In the interests of transparency, will he explain whether the ability of the Secretary of State to divert from the rules that are laid down will be set out in guidance? How will people who might be affected by that, particularly in humanitarian cases or in emergencies, know that they have the right to use exceptional circumstances as a basis for using that right?

Lord Brett: As I said, the Bill provides a discretion to allow the Secretary of State to overlook periods of absences exceeding 90 days in the special circumstances of a particular case. The noble Baroness makes a good point: how will people know what those would be? I suspect that the answer is in terms of her question and that it will be in guidance, but I shall confirm that and come back to her.
	I turn to Amendment 47. We do not support the view on the aggregation of two periods with qualifying immigration status, where they are separated by a period in which people have held a non-qualifying immigration status but, again, we have the power to apply discretion to the requirement for continuous employment. We recognise that there may be circumstances where economically productive migrants, through no fault of their own, cease to be in employment for short periods: Clause 37(7) gives us the discretion to waive the requirement in compelling circumstances. That will, however, only assist those who have spent the whole of their qualifying period continuously with a qualifying sort of immigration status.
	The noble Earl, Lord Sandwich, and the right reverend Prelate the Bishop of Norwich made points that will become clearer and more relevant in our later debates. I will take note of them, and hope to respond to them in that context. In the mean time, I hope that the noble Lord will feel able to withdraw the amendment.

Lord Avebury: I am grateful to the noble Earl, Lord Sandwich, for his intervention. Could we have a response at some point to his comments on the gateway programme? I am not sure whether those who come in under that programme are treated as being in the protection route or as coming in for work. As I understand the gateway programme, they get into employment once they arrive here, so one would have thought they were counted in the work route. Since the Minister has given us no enlightenment on that, perhaps we could ask for a written note.

Lord Brett: On the question of the gateway refugees, those which are recognised by the UNHCR before they come to the UK will continue to be granted permanent residence when they first arrive in this country. On the second point, which I was unable to confirm a moment ago in the context of the question from the noble Baroness, Lady Falkner, information on how we will see the discretion of the Secretary of State being used will be published in guidance on the UKBA website.

Lord Avebury: That is certainly helpful, and I hope that the noble Earl, Lord Sandwich, is satisfied with that reply. Regarding the intervention from the right reverend Prelate, I, too, read what was said by Church Communities UK, and he quoted an extremely valid example. That individual, who came into the United Kingdom to assist them with overseas programmes, had specialist knowledge of the Thai language and customs and spent a good deal of the first year, as I remember it, outside the country. He was all right, however, because his average was still less than the 90 days. The rigidity of the 90 days will discourage that sort of activity, and although I heard the Minister's answer to my noble friend, I would like him to assure me that that discretion can be found in the Bill. I did not notice it, and neither did my noble friend, so it would also be extremely helpful if the Minister can point us toward the clause that confers the discretion he has mentioned on the Secretary of State.
	Until we see the guidance that the Minister said would be forthcoming, we really do not know whether his answer is satisfactory. The reasons why people may have to take advantage of the discretion are manifold; we hope that it will be sufficiently flexible to cover every circumstance that we, from previous experience, know that people may invoke. It is frequently the case with this Bill that we are told guidance is coming along later, but we have no means of really getting our teeth into what is proposed because there is no idea of the nature of that guidance, or of how it will operate in practice.
	I am disappointed by what the Minister said in answer to Amendment 47, because there are circumstances—I quoted an example—where a person's qualifying residence would be interrupted by a perfectly legal stay in the country which was not qualifying. I do not see why that should be excluded by the calculation and why somebody should have to start again from scratch. By definition, if it is a lawful stay in the country, it is contributing to that person's integration. We were asking not that it should be counted, but only that the periods before and after should be aggregated in a calculation. That seemed a very modest demand which I am surprised the Minister has had to reject.
	However, I confess again that we are not hopeful of getting any further at this stage, so perhaps we shall defer our pleasure until Report and see whether we can get any further advance out of the Minister. In the mean time, I beg leave to withdraw the amendment.
	Amendment 47 withdrawn.
	Amendment 48
	 Moved by Lord Avebury
	48: Clause 37, page 27, leave out lines 11 to 14

Lord Avebury: The amendments in this group were designed to highlight the fact that, as the Minister said in winding up on Second Reading, probationary citizenship is a further period of temporary leave. We hope also to get the Government to explain what is added to the process of getting a permanent migrant to the point of applying for citizenship by having two stages of temporary leave, one after the other, called by different names but in practical terms adding nothing but a layer of bureaucracy and complexity to the process.
	The first amendment would omit the requirement that an applicant for naturalisation have a particular kind of leave at the point when the application is made. The second amendment, which is an alternative, provides that the applicant should have,
	""limited leave to enter or remain"
	at that point. All the other conditions, including length of stay, knowledge of English and active citizenship would remain the same under our proposals.
	In the Government's response to the consultation on the Path to Citizenship Green Paper, no statistics were given, but it was pretty clear that most of the respondents had been highly critical of the probationary citizenship stage. Some felt it was unnecessary because the temporary leave stage was already probationary, while others felt that it would lead to more confusion, which I am sure it will. The new stage would discourage integration, and there is no need to lengthen the timescale. There is no argument in the document to demonstrate how changing the name of temporary leave part of the way through the period of waiting to become a citizen would contribute towards integration, to British society or to clarity, which are said to be the three main aims of the legislation. Requiring the migrant to learn English, to have some knowledge of British society and contribute a recorded amount of voluntary work are all conditions which could equally well be imposed without creating an additional stage in which they have to embedded. Equally, lengthening the time before an application for citizenship can be submitted for people who break the law or who do not satisfy the language or active citizenship tests is not dependent on the name of the status occupied by the person to whom these criteria are applied.
	The Government say that they are prepared to consider changing the title "probationary citizenship", which not only carries with it overtones of the criminal justice system but is also misleading since many who are given that status are citizens of other countries which forbid dual nationality and are therefore on the way to becoming permanent residents rather than citizens. No amount of tinkering with the name should be allowed to obscure the fact that we are dealing with arbitrarily different names for two stages that are the same for the migrant, adding nothing but unnecessary complexity and bureaucracy to the process of becoming either a citizen or a permanent resident. I beg to move.

Baroness Hayman: If the amendment is agreed to, I cannot call Amendments 49 or 50 by reason of pre-emption.

Baroness Hanham: I would like the Minister to be very clear about the difference between these two nominations. The noble Lord, Lord West, explained at Second Reading that probationary citizenship was intended to demonstrate that probationary citizens were on a journey. However, interim leave to remain suggests precisely the same: it is the same process, whereby migrants are on a journey to citizenship. I agree with the noble Lord, Lord Avebury, that "probation" is an unfortunate term here. It sounds as if everything is against the person trying to get their citizenship. Probation means that you have to be on your best behaviour all the time, whereas, as the correspondence that we have received shows, everybody understands "interim leave to remain". Will the Minister tell us what the differences are, apart from the name? Is there anything in probationary citizenship that is different from interim leave to remain? If there is not, please could we stick to the name that we have?

Lord Brett: The central point is that the Government see probationary citizenship as a key part of their vision for a new path to citizenship. We believe that citizenship should be earned. The second stage will enable migrants to demonstrate their continued commitment to the UK and it will support their integration; it will encourage migrants to continue their journey towards securing British citizenship. The objective of paragraph (d), which the amendment would omit, is to ensure that migrants cannot apply for naturalisation as British citizens until they have substantially progressed on the path and met the associated requirements. The amendments would allow a migrant to apply for naturalisation without having passed through the probationary citizenship scheme, which we see as a key part of the path and the journey. They would also mean that an EEA national could apply for naturalisation without first holding a permanent EEA entitlement, which would not be appropriate. It is therefore crucial that migrants are required to pass through the probationary citizenship stage before they can be naturalised as British citizens. It would not be appropriate to have EEA nationals apply for naturalisation without first gaining a permanent EEA entitlement.
	The connotations of the word "probation" depend entirely where you come from. Much of my life has been spent in employee relations. To me, "probation" meant the time that you served after joining an organisation, company or the Civil Service before you qualified to be a permanent member of staff, or an established civil servant, whatever the term was at the time. Of course, another connotation has been suggested by the noble Lord, who said that probation in criminal law is seen as something that precedes something more serious. We are not wedded to the word "probation". We think that it is the clearest way to describe how people should take on board active citizenship activities on the way to naturalisation but, if alternatives were put forward, the Government would be delighted to consider them. If anything clearer and more acceptable were put forward, there would not be great resistance from the Government to accepting it. In the mean time, I hope that the noble Lord will feel able to withdraw the amendment.

Baroness Hanham: Will the Government accept "interim leave to remain"?

Lord Brett: The path that we set out has both terms. We want to ensure that people coming to this country understand the need of the Government and the people of this country, who overwhelmingly support the concept of active citizenship and the roles that are required by it. We want these to be understood by migrants and for as many as possible of them to play their part and participate in the scheme. Therefore, although it is not mandatory, we want to encourage it.

Baroness Hanham: The Minister has misunderstood my point. He said that the Government would consider an alternative term to "probationary". I asked whether the Government would accept "interim leave to remain".

Lord Brett: With respect to the noble Baroness, I do not believe that that actually explains clearly to the would-be citizen why active citizenship is a key part of the path. Therefore, it would not have the desired effect of the encouragement that we want to give. I suspect that it is one of those things that was there at the start of the consideration of names and was rejected for that reason.

Baroness Falkner of Margravine: I understand, I think, where the Minister is coming from in attaching a normative value to the word "citizenship". I take a view, as someone who naturalised to citizenship in this country, that there is something privileged and special about being a citizen of the United Kingdom. The Minister said that he has some flexibility. This may not be the time to put various suggestions to him, and I shall do so in writing, but would he think of "qualifying citizenship" as a solution?

Lord Brett: I am prepared to take on board any suggestions that people have for the name. Those of our colleagues in the Home Office who have considered many names already will be delighted to have those suggestions added. I am sure that, if we can find a name that satisfies a greater majority than the current name does, we will be happy to adopt it.

Lord Roberts of Llandudno: Perhaps I may come in on this, please, as a former probationary Methodist minister. In probation, if you do not do something, you are out; in qualifying, you are building blocks and moving forward. You have various things—volunteering, learning a language and so on. If you do not do them, you are in trouble. Would it not be better to do this in a more positive manner, by building up? Then, at last, you achieve the citizenship that you desire.

Lord Brett: The noble Lord makes a very good point. If we could have a word that demonstrates that this is positive, that would be helpful. I am more than happy to repeat the assertion that I made that any suggestion for names given in writing or orally will be taken on board and considered.

Lord Avebury: The discussion on to which we have been diverted, which I hoped would not happen, was whether there should be some better name for the second phase, whereas what the noble Baroness was asking initially was what the difference was between the two phases. I ventured to suggest in my remarks that, although we did not particularly like the term "probationary citizenship leave", that was not the gravamen of our criticism of the whole scheme.
	When the Minister first replied to the noble Baroness, he made three points. When she asked him what the essential difference was between the two parts of the scheme, I carefully took down what he said. First, he said that it was a key part of the Government's vision. What the hell does that mean? It is totally meaningless. He then said that citizenship should be earned. Nobody is arguing about that; what we are saying is that you do not need two stages in which that earning process can take place. It could be continuous, from the person's arrival in the country to the date on which he is eligible to apply for citizenship. Having an arbitrary cut-off point halfway through, allowing you to christen the second phase by a different name, is totally meaningless.
	The third point that the Minister made was that the second phase enables the migrant to demonstrate his commitment. Well, he has to demonstrate his commitment; there are certain rules that he has to comply with. He has to go through the earned citizenship process; he has to learn English; he has to avoid committing any criminal offence; and all the rest of it. We are not arguing about that. All we are saying—and I do not know how many times one has to repeat this—is that the imposition of a change in the title halfway through does not get us anywhere but simply adds complexity and bureaucracy to the process. I would prefer to call these phases "temporary leave to remain, one and two"; if we have to have two phases, let us make it clear that they are actually the same by calling them by the same name. Then, if we want to have them as different phases, we can attach "one" and "two" to them.
	I would prefer a much simpler solution, with a single stage starting from the date of the person's entry to the United Kingdom. It would have all the hoops that he had to jump through but it would get to a point at the end at which he could apply for citizenship. I wish that I could convince the Minister of that, but I dare say that that is not going to be possible this afternoon. At this stage, I beg leave to withdraw the amendment.
	Amendment 48 withdrawn.
	Amendment 49 not moved.
	Amendment 50
	 Moved by Lord Brett
	50: Clause 37, page 27, line 12, after second "leave," insert "a qualifying CTA entitlement,"

Lord Brett: These amendments, tabled in the name of my noble friend Lord West, make changes to Clauses 37, 38, 44 and 45. The Government regret the omission of these clauses in the earlier published Bill. Amendments 50 and 53 amend Clause 37 to provide that, on the date of the application for naturalisation, one of the acceptable forms of status is for an applicant to have a qualifying common travel area entitlement. We are amending Clause 37 to provide that a qualifying immigration status includes a qualifying CTA entitlement. Amendments 50 and 53 are designed only to ensure that Clause 37 corresponds with the common travel area arrangements for Irish nationals, not to expand the rights given to Irish nationals more generally. This amendment therefore covers only Irish nationals arriving on local journeys from within the common travel area and not those arriving from outside the common travel area.
	Amendments 58, 60 and 64 to 76 amend Clause 38 so that, where Irish nationals arrive in the UK pursuant to a CTA entitlement, or Commonwealth nationals enter the UK with a right of abode, they should be able, unlike other migrants, to qualify for naturalisation under Section 6(2) of the British Nationality Act 1981 even where their status in the UK is not based on a relevant family association. Relevant persons who enter the UK with a CTA entitlement or a Commonwealth right of abode will be able to qualify for the shorter period for naturalisation where they are in a relevant family association for the whole of the qualifying period.
	Amendment 107 provides that an Irish national who is in the UK, having arrived on a local journey from Ireland or the islands under Section 1(3) of the Immigration Act 1971, is not considered to be in breach of the immigration laws. The amendment will be limited to Irish nationals exercising rights to arrive in the UK without obtaining leave under Section 1(3), which will exclude Irish nationals who are not entitled to enter the UK under Section 1(3), as well as Irish nationals who do not arrive in the UK on a local journey from Ireland or the islands. The requested amendment is designed only to ensure that Clause 44 corresponds with the common travel area arrangements for Irish nationals, not to expand the rights given to Irish nationals more generally.
	Amendment 108 to Clause 45 is necessary to provide a definition of what we mean by a qualifying CTA entitlement. I beg to move.

Lord Avebury: We appreciate that these arrangements are necessary so that people who enter the UK from the common travel area and persons with a Commonwealth right of abode can access the new citizenship process or have permanent leave to remain.
	Amendments 50 and 53 concern an Irish national who enters the UK but would cease to have a right to reside here under the EEA regulations 2006 if she were no longer a qualifying person; for example, if she entered as a worker, became pregnant and stopped working on medical advice. Will the Minister explain how an Irish citizen, apart from ceasing to be a qualifying person under paragraph 6(1) of the EEA regulations, could otherwise forfeit the right to reside in the UK? As he explained, the amendments give any such person a qualifying CTA entitlement, which is defined in Amendments 107 and 108.
	Then we have a person with a Commonwealth right of abode, which is also to count as a qualifying immigration status for naturalisation as a British citizen under Section 6(2) of the British Nationality Act 1981 if he has a right of abode under Section 2(1)(b) of that Act. However, when I looked that up, I discovered that it referred to a Commonwealth citizen who had a right of abode in the UK immediately before the commencement of the 1981 Act by virtue of Sections 2(1)(d) and 2(2) of the Act as then in force. However, those sections have been repealed and it is, therefore, no longer possible to tell who is entitled just from reading the Act or even by going to the otherwise wonderful website www.statutelaw.gov.uk. The definition therefore fails the test of being prescribed by law and I suggest to the Minister that, at Report, if he agrees, he should repeal Section 2(1)(b) and re-enact in this Bill whatever was in Sections 2(1)(d) and 2(2). I should be grateful if he could think about that and perhaps not give me an answer off the cuff, but discuss it with me before Report.
	Amendments 57, 60 and 64 to 76 broaden the range of persons who can benefit from the shorter route to naturalisation on the basis of a family relationship. The amendments accept part of the proposal in our Amendment 61 in this group that a person with a Commonwealth right of abode and a relevant family association should be able to be naturalised without the former having to be based on the latter, but not that the same principle applies to the permanent EEA entitlement, which was also covered in our Amendment 61. Can the Minister explain this distinction? We protest that this is an example of the complexity of the scheme, which seems to be required by the splitting of the shorter family route to naturalisation into two groups—those with a permanent EEA entitlement whose leave must depend on the relationship throughout the whole of the path to citizenship and those where this is not required through a Commonwealth right of abode or the new CTA entitlement. If I may say so, this is the very opposite of the Home Secretary's claim in her foreword to The Path to Citizenship Green Paper, in which she says:
	"We want to make the journey to citizenship clearer, simpler and easier for the public and migrants to understand".
	I defy even Gail Trimble to find her way through the constantly changing maze of rights, entitlements and exceptions in the Bill.
	We have to express concern about the proliferation of types of probationary citizenship leave and to ask the Government why they made the system so complicated, instead of requiring everyone on the path to permanent citizenship or permanent leave to remain to spend the whole of the qualifying period in their existing temporary leave status. I know that we will not get anywhere with that, but I have to keep drumming it in, because it is a simple point that needs to be understood by the Government if they want to know where we are coming from in our criticisms of the whole Bill.
	Finally, we have a question about Amendment 60. I thank the Minister for most kindly providing the Keeling schedule, although it incorporates only the amendments to Schedule 1 to the BNA made by the Bill in its original form and does not include the amendments that we are considering. The qualifying CTA entitlement requires the holder to have arrived in the UK on a local journey, as the Minister explained, which is defined in Section 11 of the Immigration Act 1971 as a journey that begins and ends in the common travel area consisting of the UK, the Republic of Ireland, the Channel Islands and the Isle of Man. For instance, an Irish citizen who comes here on a flight from Dublin acquires a qualifying CTA entitlement, but if he then goes to Paris for a weekend by Eurostar or Ryanair, his return is not a local journey within the meaning of Section 11. Amendments 107 and 108 say unambiguously that he must have,
	"last arrived ... on a local journey".
	So, by going to Paris for the weekend, this person has forfeited his qualifying CTA entitlement, which has to begin again from the time of his arrival back at Waterloo. Was that really the intention behind these amendments?

Lord Brett: When I read my notes and attempted to study the background to these amendments, I gave my officials forewarning that, when questioned, I would certainly offer the facility of writing in greater detail to expand on what is relatively clear in meaning but seems incredibly complicated in writing. We do not want to repeal, for example, the 1971 Act. However, we will cover all those issues separately as part of the consolidated Bill, which is due to be announced before the end of this year.
	The noble Lord asked to whom the amendments would apply, apart from Irish nationals who have ceased to qualify under the EEA regulations. That is the purpose; it is to fill the gap for those Irish nationals. Because I thought that some of the questions on this issue would delve back into the 1981 Act, and because I have had difficulty reading the wonderful website to which the noble Lord referred, I should be grateful if he would allow me to write to him on these matters.
	However, I should say that the Government resist Amendment 61. In addition to the right of abode of Commonwealth nationals, the amendment would also allow persons with a permanent EEA entitlement to qualify under Section 6(2) and they would therefore benefit from the shorter qualification period. At the same time, the amendment does not extend to persons exercising CTA entitlement.
	The government amendments recognise the close and special bond between the UK and countries in the CTA and the Commonwealth. It is right that we continue to recognise that special relationship through our nationality legislation, helping to reinforce the unique bond that exists between the United Kingdom and the people of the Commonwealth. However, it is not clear to me why EEA nationals should be given favourable treatment in this regard compared with everyone else and be able to nationalise via the quicker route. EEA nationals already benefit from being able to qualify for permanent residence, with all the advantages that that bestows, after five years in the UK, whereas, under our proposals, everyone else must wait up to 10 years to attain this status.
	I should again make it clear that EEA nationals in a relationship with a British citizen or a permanent resident are perfectly able to qualify for the shorter time periods that apply to the "family" route. They simply have to choose to obtain leave to enter or remain on the basis of their relationship and qualify under Section 6(2) rather than rely on treaty rights. As such, I do not consider that this is in any way discriminatory against EEA nationals.
	Our amendments also maintain the current position. At the moment, Irish nationals entering the UK from France do not have a CTA entitlement to re-enter this country. In most cases, however, they will have a right to enter under European law, and that situation will remain unchanged. I hope that the proposals set out in the Government's amendments commend themselves to the Committee.

Lord Avebury: We did not say that the person who comes back on Eurostar does not have a right of re-entry at Waterloo—my noble friend says that it has now changed to St Pancras; I had forgotten that. We said that his qualifying CTA entitlement begins again from scratch the moment that he comes back to St Pancras, and that is incongruous. If this person has already spent a year in the United Kingdom, having entered from Dublin, the short holiday that he spends in Paris means that he has to begin the clock again from zero, and we find that result of the amendments bizarre. If the noble Lord would like to do so, I am perfectly happy for him to take this away and think about it a little further if he does not have the answer off the cuff.
	On the point that the Minister made about the Commonwealth having special consideration, we are not talking about anything very special. We are talking about whether the person who has the right of abode here depends entirely on the relevant family association, which is a comparatively small point. For the sake of making the Bill slightly simpler, I should have thought that the Government would have leapt at Amendment 61, so that people with a permanent EEA entitlement would be treated the same as those with a Commonwealth right of abode.
	I am beginning to see that whatever we say, and whatever the merits of our arguments, we are not going to get very far this afternoon. That is a great pity because, normally, the point of Committee is to try to improve the Bill. That is what we are doing; we are trying to assist the Secretary of State in her aim of making the journey to citizenship clearer, simpler and easier for the public and migrants to understand, instead of all the time making it more difficult.

Lord Brett: The point that the noble Lord raises about weekends in Paris, as he seductively suggests, should be considered further. I will so do, and I therefore hope that Amendment 61, which the Government are at this stage resisting, will not be moved and that the government amendment commends itself to the Committee. I will write to the noble Lord on points outstanding.
	Amendment 50 agreed.
	Amendment 51
	 Moved by Lord Avebury
	51: Clause 37, page 27, leave out lines 15 to 19

Lord Avebury: Amendments 51 and 52 are intended as an opportunity for the Minister to explain what is meant by "continuous employment" and why the condition is thought to be necessary. The first amendment deletes the requirement in Clause 37 that a person must remain in continuous employment throughout the whole of the probationary citizenship stage. Again, we are grateful to the Minister for the Keeling schedule, which enables us to see where that fits into the BNA 1981. The expression "continuous employment" is not defined. If the Minister says that that will be done in future in guidance, that would mean that Parliament has no say in the detail of the requirement now or at any future time when the Executive may amend the guidance at their absolute discretion.
	The second amendment provides that the person must not have been in breach of the conditions of that leave; there are already conditions attached to employment under the points-based system. For example, where the sponsor of a skilled worker under tier 2 of the PBS loses the sponsor licence, the worker has his leave curtailed if he is out of work for more than 60 days after that, unless he has less than six months of his leave remaining, in which case the leave will not be curtailed. If the worker finds a new sponsor to employ him within the 60 days, is he to be treated as having been in continuous employment, or is the period of his probationary citizenship to start again from the day he begins the new job, even though his temporary unemployment was through no fault of his own? If so, why do the Government consider it necessary to apply more onerous conditions to the worker on the path to citizenship than are already laid down by UKBA in the sponsor policy guidance manual?
	There are already inconsistencies between the treatment of tier 2 migrants and that of migrants from the access states of the EEA in 2004 and 2007. To take the case of a migrant from Bulgaria or Romania, the UKBA's European case work instructions provide:
	"Employment is to be considered to be continuous if the applicant was legally working at the beginning and end of that period and any intervening period in which the applicant was not legally working did not exceed 30 days".
	We consider, therefore, that introducing a new and as yet undefined continuous employment requirement will create confusion and is unnecessary when there are already strict conditions that apply to workers changing jobs. We also fear that unknown conditions are likely to cause especial difficulty for domestic workers, whose ability to change employers is specifically restricted to another job of the same kind. The domestic worker who has to leave an abusive employer and will not therefore have a reference may be unable to obtain another job as a domestic servant and special arrangements should be made for people in those circumstances. Your Lordships have debated these problems many times over the past few years, but since the meaning of continuous employment is to be defined in guidance, from now on we are to have no say in the means of protecting this vulnerable group of workers. I beg to move.

Lord Hylton: I, too, have been wondering what is meant by "continuous employment". A restrictive interpretation of it would be continuous employment with one employer. That in my view would be far too restrictive. In the present economic conditions people may be made redundant, lose their jobs or the firm may go bankrupt. Therefore, they should be given a reasonable period in which to find alternative employment. I would also like to endorse thoroughly what the noble Lord, Lord Avebury, said about domestic workers.

Baroness Butler-Sloss: I, too, support both the amendments for the reasons given by the noble Lords, Lord Avebury and Lord Hylton. I am concerned that employees, particularly domestic employees, whose employer may behave improperly towards them, may have considerable problems. The Minister may say that Clause 37(7) applies, but one does not know whether that is to be flexible and broad or to be inflexible and used only in exceptional circumstances. In the period in which we are now living, when people may have come in under an entitlement to stay here in a particular form of employment but in the present economic climate may lose their job, as the noble Lord, Lord Hylton, said, they are in real danger under the wording of Clause 37 of finding themselves put back to the end of the queue and having to start over again. It seems potentially unjust, and if it is not unjust because subsection (7) applies, why is it there anyway?

Baroness Miller of Chilthorne Domer: UNISON, in its useful briefing on the issue, raises a number of concerns such as those outlined by my noble friend. It also points out that "continuous employment" is a specific legal term that means that in the majority of cases an employee must be working for the same employer in order to qualify. Is the phrase in the Bill intended to carry that specific legal term?

Lord Roberts of Llandudno: The present economic situation has been mentioned. I was recently in Poland, which is in the European Union and totally different from this country. Some Pols coming here had a job and had been told that they would be all right, but after two weeks their construction firm had collapsed. They had already paid their worker registration fee, although are not talking about that. There is now such difficulty in obtaining employment that it would be totally unfair to insist on someone being in continuous employment before going on to citizenship.

Lord Brett: I thank Members of the Committee for that contribution. I am afraid that I am going to disappoint the noble Lord, Lord Avebury. As I said, we are changing the way that migrants progress to citizenship. We are creating a clearer journey towards becoming a British citizen by putting in place three clear routes to citizenship, with clear requirements for progression on each route. To qualify for citizenship, those here on work routes must show that they are still working and paying taxes. If they do not meet that requirement they will not qualify for citizenship and will be required to leave the United Kingdom. This is wholly appropriate: those here on the "work routes" are here to do exactly that. If they cease to be in employment, they have ceased to meet the key requirement of their route and therefore should not be allowed to progress to citizenship. If these amendments were to be made, migrants who have come here to work would be allowed to qualify for citizenship despite being completely economically inactive for, in some cases, long periods. That is wholly unacceptable.
	Furthermore, the amendment specifically proposes a requirement that the applicant has not breached conditions. However, under the existing proposals this is already achieved by virtue of the good character requirement. Under this requirement a breach of condition will normally lead to the refusal of a naturalisation application. As such, in practice, this part of the amendment is unnecessary.
	At the same time, however, we recognise that there may be circumstances, especially in the current economic climate, where economically productive migrants cease to be in employment for short periods and through no fault of their own. That is why Clause 37(7) gives us the discretion to waive this requirement in compelling circumstances. However, this is quite different from removing the requirement for a person who has come here to work to remain in employment continuously, which this amendment would allow and which would be completely inappropriate. I therefore hope that the noble Lord will feel sufficiently convinced not to press the amendments.
	Individuals can change employer. This condition is intended to ensure that an individual continually contributes to the United Kingdom economy while they are here, not that they have to be in the continuous employment of one employer. Domestic servants are not required to stay with the same employer but I take the point about references not being given. I also take the point that there are abusive employers of domestic servants. I am happy to take on board the point and, at the appropriate stage, at least explain in greater detail how this area will be dealt with. In principle, however, we do not consider that the Bill requires these amendments.

Baroness Butler-Sloss: Is the Minister saying that continuous employment does not mean continuous employment with one employer? I think that that needs to be very clear. Continuous employment—not in domestic employment but generally—has been seen in many cases in the courts as involving one employer. That point has been made by UNISON in particular, as the noble Baroness, Lady Miller, said. The Government need to be clear about it. Do they want the courts to find that this is one employer? The word continuous is not same as continual; there is a real difference and I am not sure that the Government have taken it on board.

Lord Brett: I note the noble and learned Baroness's comments with interest and respect for her knowledge on these issues. If I had to give an example, I would cite someone working for a company that goes bankrupt. If the person came in with skills and could soon obtain employment with another company that had not gone bankrupt and required those skills then that would not, as I understand it, be in breach of the proposed conditions. However, it might be wiser to put this in writing to ensure that the courts will accept that interpretation. As I understand it, the Government's intention is simply to ensure that we have continued employment and economic contributions from would-be migrants.

Lord Avebury: We are very grateful to the noble Lord for taking part in this debate and to the noble and learned Baroness, Lady Butler-Sloss, the noble Lord, Lord Hylton, and my noble friends Lady Miller and Lord Roberts. I think that they have put their finger on a number of really important issues which have not been fully resolved in the discussion.
	When the Minister stood up and started talking about a clearer journey and clear requirements, I wondered whether he had been listening to us. This is totally unclear. We have no idea what the rules will be for determining whether a person has been in continuous employment or of how the discretion in subsection (7) that the noble and learned Baroness, Lady Butler-Sloss, has drawn our attention to is to be exercised. The Minister has thrown no light whatever on the Government's intentions. Before we get to Report, we must have more information about what is continuous employment within the meaning of the British Nationality Act 1981 and how the discretion to disregard it in subsection (7) is to be exercised.
	If the Minister really wants to be helpful, he ought to look at parallels such as the EEA regulations which contain definitions of continuous employment. The noble and learned Baroness, Lady Butler-Sloss, has referred to cases in the courts. If we had common definitions of what is meant by continuous employment throughout the legislation, that simplification would be of great help to the lawyers, to those involved in casework and to the workers themselves. However, I suppose that that is a little too much to hope for.
	The Minister referred to the private domestic workers issue and I am grateful to him for promising to come back to us on that. However, under the Bill the migrant domestic worker has to remain in domestic service. They cannot leave domestic service and go into some other type of employment. When they are unfortunate enough to have an abusive employer, therefore, and do not get a reference, it will become virtually impossible for them to get another job in the same domestic sector. That is a fact of life. I hope, therefore, that we can find some means of allowing them to escape from this dilemma.
	With regard to long periods of inactivity mentioned by the Minister, I need to know what he means. "Long" could mean 30 days, as in the EEA regulations, or it could mean 60 days. We do not have the faintest idea. No light has been thrown on the subject this afternoon. We look forward to communications from the Minister later on, certainly before we get to Report. Meanwhile, I beg leave to withdraw the amendment.
	Amendment 51 withdrawn.
	Amendment 52 not moved.
	Amendment 52ZA
	 Moved by Lord Hylton
	52ZA: Clause 37, page 27, leave out lines 20 and 21

Lord Hylton: I should explain that the two amendments in this group have been renumbered and possibly also regrouped since they were first put down. Amendment 52ZA is concerned with the language requirement for citizenship. It has been drafted by the London office of the United Nations High Commissioner for Refugees. Its purpose is to ensure that refugees and those with humanitarian protection or their family members are not disadvantaged by an inability to meet the language requirements because of the special circumstances of their situation and past history.
	The UNHCR points out that, before arriving in Britain, many refugees and protected persons will have fled from communities torn apart by conflict or persecution. They may have spent years in makeshift camps. They may have lived in remote areas with little available education, let alone access to English language training. I would add that some have suffered torture or other brutality, while others have a range of mental and physical needs, including dyslexia, speech problems and depression, all of which may make learning a new language difficult or impossible. We are considering a uniquely vulnerable group of people who differ markedly from young, healthy students or economic migrants. The group includes some full-time and part-time carers.
	The Minister will notice that this is essentially a permissive amendment. It gives the Secretary of State discretion to waive the requirement if, and only if, it would be unreasonable for it to be met. I therefore ask the Minister to accept this very modest amendment as it stands, or at the very least to say that he will take away the principle behind it.
	Amendment 61B also comes with the approval of the UNHCR. The high commission is concerned about the successful integration of refugees in the countries where they are recognised and accepted. The final solutions should not therefore be unnecessarily delayed. In particular, refugees should not be required to show that they were not in Britain in breach of the immigration laws at any time during the qualifying period for citizenship. The reason for this is simple. Article 31 of the 1951 convention prohibits states from imposing penalties on refugees on account of illegal entry or presence,
	"provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence".
	I have quoted directly from the convention. Delaying the start of the qualifying period is a good example of a penalty. Britain helped to draft the convention and has ratified it, and is not entitled to opt out or make a reservation by means of one line in a very miscellaneous Bill.
	If his memory is exceptionally good, the noble Lord, Lord West, may recall that I wrote to him on 24 October last following a Written Question. I stated then that many genuine refugees fleeing persecution have no option but to travel on someone else's passport or on a forged document. Others may have entered illegally by stowing away or by some other desperate expedient. All will have committed technical breaches of immigration law or rules, but provided that they subsequently comply with the convention, they should not be penalised. I therefore commend this amendment to your Lordships and urge the Minister to accept it. If he wishes to argue that the paragraph in question applies to the totality of applicants for naturalisation, will he please arrange for a redraft which would specifically exempt recognised refugees? Any perfected amendment should probably also take account of Clause 37(2)(f), which is similar. I beg to move.

Lord Clinton-Davis: I adopt entirely the arguments of the noble Lord, Lord Hylton. I cannot understand why the burden of proof should shift on to refugees to satisfy the requirement that they were not at any time during the qualifying immigration period in the UK in breach of immigration laws. I also adopt the argument he adduced that it is impossible for the Government to opt out of their international obligations, which they are seeking to do by virtue of what is in the Bill. I ask the Minister to think again about the provisions in question. That would partially satisfy both my noble friend Lord Hylton and me. I hope he will not object to this issue. I ask the noble Lord who will reply to this debate to be reasonable.

Lord Roberts of Llandudno: I, too, support the amendment moved by the noble Lord, Lord Hylton, and supported by the noble Lord, Lord Clinton-Davis. We have to go back to the 1951 UN Convention relating to the Status of Refugees. Article 34 states:
	"Contracting States shall as far as possible facilitate the assimilation and naturalisation of refugees. They shall in particular make every effort to expedite naturalisation proceedings and to reduce as far as possible the charges and costs of such proceedings".
	That is the declaration in the convention, which we are proud of supporting over so many years. As has already been stated, we should not try to opt out. We need to clarify some points, such as "in special circumstances". What are these circumstances? When the new simplification Bill comes before us, there will possibly be some elaboration on this so that we know exactly what it is. Which circumstances does the Minister consider to be special? We have sometimes heard the answer that every case is considered on its own merits. However, it is sad that so often we have to battle to get a certain case across. We need an overview of this and to think about it in some depth. What are these special circumstances?
	I was saddened to hear as recently as last week that deportation to the Congo had resumed and that people in desperate situations had been sent back there. This Bill does not deal with that, but it deals with special circumstances. Let us support this amendment, look again at what special circumstances are and have a situation where people know where they stand, so that people who are despairing and who do not know the language can at least feel confidence in the Untied Kingdom as a haven for those in real distress.
	This is the nearest sitting day to St David's Day. I am delighted that not only are English and Scottish Gaelic included in the Bill, but so is the Welsh language. We will possibly discuss this on another occasion. Certainly, we support the amendment moved by the noble Lord, Lord Hylton.

Lord Brooke of Sutton Mandeville: I do not in any way resile from the amendments that have just been moved and are being discussed, but I want to utter the briefest cautionary word so that we are not too patronising. It is frequently suggested, in arguments of this sort, that there is no possibility of the individual concerned being able to understand our language or the circumstances. I am reading Africa by Mr Richard Dowden, director of the Royal African Society, in which he remarks that there are plenty of Africans who, because of the number of languages that are spoken in Africa, are the masters of at least five languages. That statistic is somewhat embarrassing in the context of these islands. We should not be unduly derogatory about Africans' capacity to pick up languages. That said, I understand what underlies these amendments.

The Earl of Sandwich: I agree with my noble friend. His amendment is very modest, as were the remarks of the noble Lord, Lord Clinton-Davis. Sub-paragraph (2)(f) is mean and unnecessary in the light of legislation passed over the 14 years that I have been a Member of this House, which has progressively excluded refugees at the point of entry and made life more difficult for them. The noble Lord has international experience and will appreciate the situation of many of these individuals. The subsection penalises not only migrants but also genuine refugees who have been forced to enter the country illegally. We have quarrelled again and again about passports and the necessity for destroying documents, and there are many genuine people in this country who have had to go through those hurdles.
	As the noble Lord, Lord Roberts, said, the Government are on dangerous legal ground because states are obliged under Article 31 of the convention not to impose penalties on account of illegal entry. That is fairly straightforward. He also told us that Article 34 requires states to make every effort to expedite naturalisation. Having been stripped of their own citizenship, refugees surely have a strong moral claim to adoption by another state. The Bill as it stands takes them further away from the path of citizenship that the Government intend to lay for them and which we have heard so much about.

Baroness Howe of Idlicote: I shall be brief because nearly everything has been said. Having listened to the arguments that have been made about the near, if not total, illegality of what is proposed, I agree that it must make sense for the Minister and the Government to reconsider this issue. I agree with the noble Lord, Lord Clinton-Davis: why on earth should it be on the back of the individual to prove that they were not in breach of any of the immigration laws? That is an absurd requirement and must be seen as such. The point has been made again and again about the awful plight of refugees and the way in which they have been persecuted over long periods of time. I hope that the Government will look at the whole issue and find a way that will extend flexibility.

Baroness Stern: I support all noble Lords who have spoken. At Second Reading, I asked the noble Lord, Lord West, to assure the House that the comments by the United Nations High Commissioner for Refugees on the Bill would be taken seriously by the Government and I asked him whether he would look again at the points raised to see what could be done to improve the Bill and make it more in accordance with the refugee convention. There was understandably no reply at Second Reading because the Minister had too many questions to reply to, but I hope that in his reply to these amendments the noble Lord will give a positive response.
	The UNHCR is a UN body and its comments should be taken seriously. These amendments have its support. In particular, the UNHCR briefing states that refugees should not be penalised for illegal entry and that any such penalty should not affect the qualifying period for naturalisation. We are talking here about refugees—people who have fled from appalling circumstances—and, as the noble Lord, Lord West, said in the Second Reading debate,
	"each case, no matter who they are, is a personal tragedy".—[Official Report, 11/2/09; col. 1209.]
	I hope that we will get a favourable response to the amendments.

Lord Brett: The broadness of the amendment is in contrast to the narrowness of the debate and the contributions made, which have been, to a large degree, about the issue of refugees, to which I shall return.
	One of the key principles of our proposals is that anyone who wishes to remain here permanently and become a British citizen must obey the laws, and those are not limited to those who commit criminal acts. We also say that such people should have relevant leave or entitlement to be here; those who do not should not be allowed to become a British citizen. This reinforces the fact that, as well as from the public, we have a right to demand the highest of standards from those who wish to remain here. It has been a long-standing requirement that a person must not be in breach of immigration laws. This is contained in existing criteria for naturalisation.
	It is worth mentioning here what it means to be in breach of immigration law. It applies to people who do not have a right of abode, do not have leave to enter or remain, do not have an entitlement to reside under the 2006 EEA regulations, do not fall under Section 8(1) of the Immigration Act 1971 for crew members and do not benefit from an exemption under Sections 8(2) to 8(4) of the same Act. We retain the discretion in Schedule 1 to the British Nationality Act 1981 to treat an applicant for naturalisation as fulfilling the requirement to not have been at any time in breach of immigration law, even though they may have been.
	I turn now to the narrower points covered also in Amendment 61B. On the question of language, the amendment would not add anything to the situation that exists. There is already an ability in paragraph 2(e) of Schedule 1 to waive the English language requirement if, because of the applicant's age or physical or mental condition, it would be unreasonable to expect him or her to meet the requirements.

Lord Roberts of Llandudno: Does the Minister confine that to the English language or does he include the three languages mentioned in the Bill?

Lord Brett: Under the existing law it is the languages expressed in existing legislation. In future it will be the languages described in the legislation to come.
	Additionally, the requirement does not apply to those aged over 65 or under 18. I take the point made by the noble Lord, Lord Brooke, that many of the people who come here have skills in several languages and that it is wrong to suggest that they will have great difficulty with the English language. However, it would be clearly an advantage for them to have the English language if they are to integrate and to be successful in our society.
	I am grateful for the points made forcefully and eloquently by a number of noble Lords on the question of refugees. The Government will consider the points that have been raised. We note the special situation of refugees.

Lord Clinton-Davis: The UNHCR has taken the trouble to write to a number of noble Lords about this issue. It is all very well for the Minister to say that the Government will listen carefully to what has been said but we need something more positive. The Government ought to take into account what the UNHCR is arguing, which is much more positive than what he has just said.

Lord Brett: The views of the UNHCR on international protocols do not necessarily accord with those of member states, including, in this case, the United Kingdom. Therefore consideration is the road that we should go down and we should think about a further discretion to cover the time periods taken for the consideration of protection cases. I hope that that is sufficiently helpful.

Lord Clinton-Davis: As I said before, the UNHCR considers this issue to be of paramount importance and many Members of this Committee share that view. What I would like the Minister to say is not that the Government will consider the issue but that the Government will be in touch with the UNHCR to derive from it the conditions that it is setting. We should be in absolute obeisance to what it has to say.

Lord Brett: The Home Office is in daily contact with the UNHCR. I say that from the experience of my previous role in international affairs within the United Nations. We are clear on many of the views of the UNHCR and there will be dialogue between our colleagues and the UNHCR. Of this I am sure. I am also sure that we will take on board the strongly held views of my noble friend and others to ensure that we are in a position when we come back to this on Report to be helpful and informative in respect of the UNHCR.

Lord Hylton: I am extremely grateful to all noble Lords who have spoken in support of these two amendments. I notice that no one in any part of the Committee seemed to oppose them. I thank the Minister for what he has said. If I may attempt to summarise the reply, it was that the amendment about language is not strictly necessary. In that case, why can we not have it in the Bill? It would give an extra degree of clarity. With regard to the second amendment, on illegality and the qualifying period, it is encouraging that we are to have consideration and dialogue, but we need a little more than that.
	Regarding language, we need an assurance that discretion will normally be applied so as to disregard any such restriction as is mentioned in paragraph 1(1)(c) of Schedule 1 to the British Nationality Act 1981, in the special case of refugees with humanitarian protection and their families due to the circumstances of their situation. With regard to the second amendment, it would be helpful to have an assurance that penalisation for illegal entry in the case of refugees would not operate to reflect the qualifying immigration status period. Would the Minister like to say anything further on those two points?

Lord Brett: We need to await the discussion and the subsequent debate that will ensue on Report regarding the UNHCR. As I have said, we will continue to have discussions ahead of Report. With regard to the noble Lord's second amendment on the question of penalties for refugees, the Bill does not penalise them in that way. Their qualifying period does not start until they are granted leave as a refugee. Therefore, the requirement not to be in breach of immigration laws does not become relevant for naturalisation until later, when that period has begun—in other words, beyond the point at which the status has been given. Furthermore, the requirement regarding breach of immigration law is about having the rights or the status to be in the UK, not about offences committed. I hope that that is helpful and that we can continue this discussion on Report. I urge that the amendment be withdrawn.

Lord Hylton: I am not at all reassured by what has just been said about non-penalisation. However, so that we can have further dialogue between now and Report, I beg leave to withdraw the amendment.
	Amendment 52ZA withdrawn.
	Amendment 52ZB
	 Moved by Baroness Hanham
	52ZB: Clause 37, page 28, leave out lines 5 to 10

Baroness Hanham: I hope that this will be easier for the Minister, because it is just a probing amendment. Since one of the routes to citizenship is through performing an exceptional Crown service and the Secretary of State is going to consider whether the applicant's performance is so special that they can have citizenship, will the Minister kindly tell us exactly what an exceptional Crown service case will be, how it will be defined, how it will be known if it is seen and what the Secretary of State will take into account regarding an applicant's performance for the service to be exceptional?

Lord Brett: I will attempt to meet the noble Baroness's aspirations, and if I fail I will be happy to extend that in greater detail in writing. The effect of the amendment would be to widen the circumstances in which the Secretary of State could exercise discretion to weigh the need to fulfil particular requirements in respect of exceptional Crown services. In particular, it would remove the need for a person to be serving outside the United Kingdom at the time of the application in order to qualify for the discretion. As the discretion is specifically designed to be applied to Crown servants who are serving overseas, we do not consider that to be appropriate.
	At the same time, by defining the broad parameters of the discretion as we propose, we provide for greater transparency, which we think will help Parliament. Further, I can advise the Committee—and I hope that this starts to meet the points raised by the noble Baroness, Lady Hanham—that we would be likely to use the discretion when a Crown servant had demonstrated exceptional service by, for example, representing Her Majesty's Government in a senior position such as vice-consul, or by demonstrating service significantly above and beyond the call of duty that has directly benefited the United Kingdom and its interests.
	As I say, we intend to define the broad parameters of the discretion. I hope that we can, meanwhile, move along on that basis. Regarding the greater definition, that will be forthcoming but if, in the mean time, I can help the noble Baroness by giving more examples in writing, I will do so.

Baroness Hanham: It would be helpful, but we are packing up an enormous amount for the Report stage here simply because we are not getting the clarity that we would hope for in the answers. The naturalisation here is either through an Armed Forces case or one of exceptional Crown service: so far, we have had someone who might have been a vice-consul quoted. It would be very helpful—before the Report stage, or as soon as possible—if we could know exactly who it might encompass. Someone in the Armed Services who is not, by definition, part of this country might be exceptional. We have had the Gurkhas, for example; there must be others who, it is anticipated, could be in that category. I wonder who they are. Are these people who are serving, or who have been here for some reason and are now serving in the forces? What would they particularly need to have done in order for the Secretary of State to consider them for naturalisation?
	On the Crown service case, if it is only a vice-consul or an honorary consul then I am sure that they will have done a great job, but there must be someone better than, or as good as, that who might be considered. Could the Minister write to let me have the definition and the ideas of who might be included? I am sure it is perfectly all right as a paragraph, but in the interests of transparent legislation we might like to know what it means.

Lord Brett: I confirm once again that I will write to the noble Baroness. However, this is doing nothing but maintaining the current position, so we are suggesting no change.

Baroness Hanham: I beg leave to withdraw the amendment.
	Amendment 52ZB withdrawn.
	Amendment 52A not moved.
	Amendment 53
	 Moved by Lord West of Spithead
	53: Clause 37, page 28, line 19, at end insert—
	"( ) a qualifying CTA entitlement;"
	Amendment 53 agreed.
	Amendment 54
	 Moved by Baroness Falkner of Margravine
	54: Clause 37, page 28, line 21, at end insert "; or
	(f) detention, temporary admission or release within the meaning of section 11 of, and Schedules 2 and 3 to, the Immigration Act 1971 if immediately following that detention, temporary admission or release the person had a status listed in paragraphs (a) to (e) above.""

Baroness Falkner of Margravine: In this amendment, we are trying to ensure that periods of temporary admission, temporary release or detention can count toward the qualifying period if they are immediately followed by a grant of a qualifying immigration status. Amendment 55 is an alternative to the first, which would ensure that those who have made a claim for asylum or who are here on human rights grounds, and those claiming entitlement to exercise rights of free movement under European Community law, can count time spent in the UK prior to the determination of their application as part of the qualifying period, and that
	"exceptional leave to remain outside the immigration rules",
	also counts toward it.
	Some migrants may have their path to citizenship interrupted by the UK Border Agency for reasons that turn out to be unnecessary, or sometimes where there might have been misinformation and a wrong decision has been taken. These amendments seek to further the Government's aim of promoting integration of those migrants who are anticipated to make the UK their home by ensuring that delays in processing their claims, or unnecessary interruptions in their temporary leave, do not delay their progress toward citizenship.
	Amendment 54 would mean that someone who was awaiting the UK Border Agency to resolve their application for leave to enter the UK would not be prejudiced by that delay, contributing to an overall delay in their progress to citizenship. Under Schedule 2 to the Immigration Act 1971, a person who arrives in the UK may be granted temporary admission while the UK Border Agency considers his or her entitlement to be granted temporary leave. This generally applies to refugees and others who may qualify for humanitarian protection or discretionary leave on the basis of a human rights claim.
	Amendment 54 would also mean that someone who was wrongly detained while on temporary leave or otherwise had his leave wrongly curtailed would not be prejudiced by having to start the path to citizenship all over again once this unnecessary or perhaps misinformed interruption was resolved.
	Let us think of a person who arrived in the UK, claimed asylum and was then granted temporary admission. However, their asylum claim was not dealt with for several months and was then refused on incorrect grounds. Although the person successfully appealed against the decision, they were not recognised as a refugee until several years had passed since their arrival. All the time that they had been in the UK, up to the point at which their refugee status was granted, they were on temporary admission, had complied with all the conditions of it and had not been in any breach of immigration laws. Nevertheless, under Clause 37 as it is currently drafted, their time in the UK awaiting the decision to recognise them as a refugee would not be allowed to be counted towards their qualifying period of citizenship.
	I would have thought that the Minister, having heard the debate on the previous amendment, of the noble Lord, Lord Hylton, to which many other noble Lords contributed, would have got the drift of the feeling of the Committee by now; namely, that that would be seen by us to be rather unfair. On that basis, I hope that he will consider this amendment favourably as it enhances the agenda of integration. I beg to move.

Baroness Howe of Idlicote: I support the noble Baroness's recommendation, particularly with regard to the specific rights for refugees. Without repeating too much what has been said on previous amendments, I say that the country's support for the 1951 Geneva Convention certainly requires us to expedite the naturalisation process for refugees. Lengthening qualification periods for them in any way is surely a direct violation. It is vital, for example, that pending claims for asylum count towards the qualifying immigration status, so that refugees can begin to rebuild their lives as soon as they are granted asylum here. Although the amendment is yet another in this same sort of grouping, as the noble Baroness said, I hope that the Minister has picked up the general feeling around the Chamber that there is great unfairness, to put it mildly, in what is going on this Bill.

Lord Brett: The speaker from this Dispatch Box is aware of the possibility of being clobbered several times with questions and statements. I am pleased to be able say on this important issue not only that the points are recognised—I thank noble Lords for raising them—but also that I agree that the suggested amendments warrant further consideration. L Committee's agreement has been sought and obtained to table amendments which will partly cover these proposals, which we intend to move on Report.
	The amendments that I propose to table will ensure that the clauses give discretion to waive the requirement for qualifying immigration status for the whole of the qualifying period in relation to Section 6(1) and (2) of the British Nationality Act. Although it is not possible at this stage to give specific examples of where that discretion may be used, the expectation is that it would be used only in a limited number of cases, but would give the necessary flexibility to the system that we are creating.
	The Government remain fully committed to meeting their international obligations in respect of those fleeing persecution. However, we do not propose to go as far as permitting any time spent in detention, or on temporary admission, or temporary release where that is followed by a grant of qualifying leave, or any time spent pending an application for leave to remain in connection with an asylum, human rights or humanitarian protection claim, to count towards the qualifying period. This is in part because, in asylum cases, a decision is based on the prevailing circumstances at the time the case is considered—some 60 per cent of cases are now dealt with in a six-month period—in addition to taking into account the facts of the claim when originally made. For example, the fact that a person is recognised as a refugee does not always mean that he was so from the start. Events in the country of origin, fresh evidence or case law, or a finding on appeal could justify recognition after the initial application was made.
	I would advise noble Lords that leave granted outside the immigration rules will fall under the definition of temporary residence leave where it leads to a grant of probationary citizenship. As such, it would be unnecessary to make specific provision in the legislation for exceptional leave to remain to count towards qualifying immigration status.
	I hope that noble Lords will agree that a fuller debate on these amendments would be more appropriate. I look forward to bringing amendments to your Lordships' attention on Report and hope that this amendment will be withdrawn.

Lord Avebury: The Minister said that not every period of detention will be counted. I will ask about one group of detentions that I think he will agree would have to be counted in whatever system he devises. I refer to cases where it is found that a person was detained unlawfully. I recall the case of a refugee from Cote d'Ivoire who was detained for something like six months. I wrote to Beverley Hughes, who was then the Minister who dealt with immigration, no less than nine times, without getting a reply. In the end, when this person was released, she brought proceedings against the Government in the High Court and won damages of £60,000. In a case of that kind, where the Government are plainly wrong and have had it drawn to their attention that they are detaining a person unlawfully, surely it would be unfair not to count the period that the person spends in unlawful detention towards the qualifying period.

Lord Brett: The noble Lord is very experienced and will recognise that I cannot comment on individual cases. He makes a powerful argument that has been brought to the attention of the responsible authorities, and we will put forward amendments that I hope will meet with the consent of many noble Lords. I hope that this amendment can now be withdrawn.

Baroness Falkner of Margravine: I am grateful to noble Lords who have supported these amendments. I am also encouraged by the Minister's reply. In order to facilitate the decision-making of those of us who support these amendments, when the Government are tabling their amendments, could they either give sufficient time for us to see them and respond through amendments if they need improvement, or write to us and tell us the contents of the amendments in good time for us to respond before Report?
	Another point that was not made entirely clear to me concerns a case where the Border Agency has made a mistake, perhaps on the basis of misinformation. Someone could come as a skilled worker and then have their temporary leave curtailed because it is thought that they have not abided by the conditions. If they are then detained to be removed, but can prove that it was the agency's mistake rather than anything they had done, they might have their leave reinstated: we understand that. However, under Clause 37, they would be required to begin their path to citizenship all over again, because of the insistence that the qualifying immigration status has to apply throughout the qualifying period.
	In that case, the period of detention would not count as qualifying status, even though it would have been no fault of the person himself, and would in fact have been the fault of an agent of the Government. The Minister did not really cover that part of it; would he also dress that anomaly in future amendments?

Lord Brett: I am delighted to give the assurance that we will write to noble Lords and do so either with the amendments or with an explanation of what they will contain in sufficient time for their digestion and responses. I shall also undertake to include in that response the important point that the noble Baroness raised with me.

Baroness Falkner of Margravine: I beg leave to withdraw the amendment.
	Amendment 54 withdrawn.
	Amendment 55 not moved.
	Amendment 56
	 Moved by Baroness Hanham
	56: Clause 37, page 28, line 25, at end insert—
	"( ) Nothing in this section shall affect the application for British citizenship made by an applicant prior to the commencement of this Part."

Baroness Hanham: This amendment would ensure that the new provisions in the Bill could not be applied to applicants whose applications were pending when Part 2 commenced. The amendment also provides an opportunity to probe what will happen to those with limited leave to remain, or those yet to qualify for limited leave to remain, when the new provisions come into force.
	The trouble is that the Government have a bit of form on this. In 2006, they changed the highly skilled migrant programme and then applied it retrospectively, catching quite a number of people within those provisions, for some of them extending the time that they had to wait from four to five years and causing quite a lot of hardship as a result. It is important that this is made clear now. I go back to my comment at Second Reading that, if we are not clear about this and this is not done, many people who are in this country and are progressing on their way forward to citizenship, following all the rules that have been put before them, will be in that position of snakes and ladders. They will think that they are progressing at a good rate and doing the right things but will suddenly find themselves down at the bottom of the pile again and having to start all over.
	This just needs a simple agreement from the Government that the provisions will be applied only as and when Royal Assent is achieved. That would make it very clear to anybody else in the process at the moment that they will proceed under the rules that pertain at the moment. I beg to move.

Lord Avebury: The amendment provides that an application lodged before the commencement of Part 2 would be dealt with under the law as it stands today. It also provides us with a very useful opportunity to ask the Government on their intentions regarding people with limited leave to remain at that point. Those people will have planned their future lives on the basis of current legislation, which allows them to apply for indefinite leave to remain at the end of their period on temporary leave. If there are no fair transitional arrangements, they will be obliged to apply for probationary citizenship leave, extending the time that they have to spend on temporary leave and persuading many to defer the major life commitments that people undertake, such as starting a family or buying a house, and thus delaying the integration that is claimed to be one of the Government's main objectives.
	I refer to a High Court case heard last year, dealing with changes to the scheme known as the highly skilled migrant programme, in which Judge Sir George Newman referred to the adoption of legitimate expectations. He said in conclusion that he was,
	"satisfied that the terms of the original scheme should be honoured and that there is no good reason why those already on the scheme shall not enjoy the benefits of it as originally offered to them".
	That was the case involving HSMP Forum Ltd. If the Minister needs to look it up, its neutral citation number is 2008 EWHC 664. That judgment seems to me highly relevant to the amendment moved by the noble Baroness because the High Court found that the legitimate expectations of these highly skilled migrants under the previous scheme should have been honoured. As I understand it, the amendment would ensure that people who have entered with legitimate expectations should not be denied the privilege of remaining in that course of action.

Lord Brett: I hope that I can be more helpful on this amendment than I appear to have been on earlier ones, judging from the Committee's reaction. Members of the Committee have referred to the transitional arrangements that we intend to put in place when the provisions of Part 2 become law.
	I reassure the Committee that any application for naturalisation that is received by the UKBA before the earned citizenship provisions are implemented, and which remains undecided, will be considered under existing arrangements set out in the British Nationality Act 1981; that is, the earned citizenship provisions will not be applied when the application is considered.
	I also advise the Committee that officials are examining what transitional arrangements will be put in place for those who are currently in the immigration system but who have yet to submit an application for indefinite leave to remain or for naturalisation. We intend to set out details of these transitional arrangements in the commencement order that gives effect to Part 2.
	On the point made by the noble Lord, Lord Avebury, migrants who are in the UK and have existing limited leave to enter or remain will be able, under the new system of qualifying immigration status, to count that time towards a qualifying period for naturalisation as a British citizen. I hope that with that reassurance the noble Baroness will feel able to withdraw the amendment.

Baroness Hanham: I do not understand the position with regard to the transitional arrangements. I understood the noble Lord to state clearly that anybody who is in the system at the moment will carry on as the system is at the moment and that, after Part 2 has commenced, any new applicants will come in under the earned citizenship arrangements. I am afraid that I do not understand where the transitional arrangements come into this. If they mean something different from "not starting until the commencement of Part 2", I am not sure what the noble Lord is suggesting will happen. Will he amplify that?

Lord Brett: Having said that we propose to change the way in which people will be covered by these systems, I should add that a number of areas requiring further development remain. The existing arrangements for naturalisation will continue until those proposals are put before Parliament. We have yet to make a final decision on how our proposals will impact on people who are already in the immigration system. We are continuing our work in this area and hope to make a further announcement in the summer. So it is a matter not of those who have not yet made an application but of those who are in the system at present but will not necessarily be affected by the new proposals coming in as they are already being considered.

Lord Elton: I was slightly confused by all the negatives there. I take it that it is intended that those who are in the system will go on in the system unchanged and that those who come in later will be taken through the transitional system. Is that right?

Lord Brett: Not quite. Those who apply before the new system comes into operation will be dealt with entirely under the present arrangements. There will have to be transitional arrangements for those other persons who are in the system and have already applied but whose cases will not necessarily have been dealt with. I think that it would be better if I set out in a note how the transitional arrangements will apply. We have not devised precisely how they will apply—we are still working on that—but I can certainly send an interim note setting out why we think that we need to have transitional arrangements and to whom they will apply.

Lord Hylton: It is important to avoid any kind of retrospection in this legislation. I hope that the noble Lord will take that into account.

Lord Brett: Indeed, that is why I shall explain in a note not necessarily what the transitional arrangements are but why we need to apply them. The note will cover those who have already applied, who are therefore covered by the present arrangements, and those to whom the transitional arrangements will apply. Such an explanatory note might be helpful. I take noble Lords' points on board.

Baroness Hanham: We will need a note, because I have a huge concern to ensure that the people whom we were trying to cover under the amendment—the people who are at various stages of the current naturalisation process—will not be caught by this. We want to ensure that they can proceed as they have been proceeding under the previous legislation. They should get their naturalisation and their citizenship under the rules that apply at the moment. I think that the Minister has said that transitional arrangements might apply to those people. I do not understand that, because it does not seem to make sense. I can understand that some people will apply between today and the commencement of Part 2 and may need transitional arrangements, but I am much more concerned that the people who are already in the system and are progressing their way through it should not be left in a situation where they have to start looking at Part 2 and finding that they cannot comply because they cannot do an activity, cannot speak Scottish and Welsh or cannot comply with other rules and are, therefore, trapped in a system that is changing in front of their eyes.
	It is important that retrospection does not get caught up in this. The noble Lord, Lord Avebury, cited a case that I have before me but did not worry the Committee with. That case left the Government looking not very clever, although I gather that they have been clever enough to manage not to implement the judgment. If this issue needs further clarity, I should be grateful for it, but I hope that I have been as clear as I can be about my concerns regarding those currently in the system and those who will apply before Part 2 commences and whether a different system will apply there. If there are to be transitional arrangement for the people currently in the system, I shall certainly return to this matter on Report.

Lord Brett: The noble Baroness makes her position absolutely clear, which is why a note of explanation, fairly urgently delivered, will be useful. We are prepared to respond further on that basis. The point on retrospection was taken and well understood.

Baroness Hanham: I am still not at all clear what is happening, but for today's purposes I beg leave to withdraw the amendment.
	Amendment 56 withdrawn.
	Clause 37, as amended, agreed.
	Clause 38: Application requirements: family members etc.
	Amendment 56A
	 Moved by Baroness Miller of Chilthorne Domer
	56A: Clause 38, page 28, line 39, at end insert—
	"(5) Notwithstanding the power of the Secretary of State to exercise his discretion under subsection (4), he shall, in addition, for the purposes of subsection (3) prescribe circumstances in which A shall be treated as having a relevant family association on the date of the application although the relevant family association ceased to exist before that date."

Baroness Miller of Chilthorne Domer: Our amendment concerns the discretion mentioned in the Bill. It probes the Government's intention as to the circumstances in which the Secretary of State would exercise his discretion and treat the person's relationship as subsisting. In addition, we wish to provide for the power to make regulations to lay down criteria as to when a person's relationship shall be treated as subsisting. Clear-cut cases are not subject to arbitrary discretion; however, it may be helpful if the Secretary of State retained some discretion to enable him to step in to help in exceptional cases.
	Our concern in tabling these amendments is to protect the welfare of children and spouses where there is violence, neglect or abuse. The Committee may recall that we had a substantial debate on domestic violence the week before last. The House recognised at that time that domestic violence was widespread and we are concerned to cover in the Bill the unfortunate circumstances of people who might be caught up in that cycle of violence. It is, therefore, important that the adult from abroad without settled status is in a position to leave the other settled or British partner and, if appropriate, have responsibility for caring for the children, whatever their status. This means that the adult without settled status must not be treated as a person subject to immigration control and should, therefore, be able to access social security and tax credits.
	I realise that we will go into more detail on the status and rights of children when we get to Clause 51, but would the Minister like to comment in particular on the implementation of the UN Convention on the Rights of the Child? The Children's Rights Alliance for England published a useful critique, which the Minister may have had a chance to look at, making a number of points about immigration and children. The circumstances of this amendment are pretty tight in that it would not, I hope, apply to many individuals, but it would mean that the Secretary of State had the discretion that we mentioned. I beg to move.

Lord Brooke of Sutton Mandeville: There is no intimation of a clause stand part debate on Clause 38, so, if I may, I shall take the opportunity of this amendment to Clause 38(2) to revert to the observation of the Delegated Powers Committee on this subsection.
	When we debated Clause 9 last week, I referred backwards to Clause 8, and especially Clause 8(2), which had also prompted comments by the Delegated Powers Committee. Those comments had embraced Clauses 9 and 10, as well as Clause 8. I was obviously not seeking to go backwards then but I indicated that, if the Government had not yet responded, I would return to the matter on Report. The noble Lord who responded for the Government on that occasion said that he was not aware of any reply and accepted the notice, but he later let us know that the Government had replied. I of course accept that my reference was taken from the third report of the Delegated Powers Committee, and the fourth report, which has not yet been published, will presumably contain the reply, but I cannot know whether that reply will resolve the matter. Exactly the same thing has happened with regard to Clause 38(2), which the Delegated Powers Committee has drawn to the attention of the House. I do not want to unsight the Government, so I shall return to this matter again—in this case, on Report—unless the Government's reply, which presumably by then will have been published, has resolved the matter satisfactorily.

Lord Brett: Perhaps I may, first, assure the noble Lord, Lord Brooke, that the response has been dispatched and I have knowledge of it, but it may be easier for the matter to be dealt with on Report, when we have had sight of the reply.
	Our position on Amendment 56A is that it is not necessary to specify in the Bill the circumstances in which a person will be treated as having a relevant family association on the date of application for naturalisation, even though the association had ceased to exist before that date. Clause 38 contains a power for the Secretary of State to apply discretion in cases where a relevant family association may have ceased before the date of the application and nevertheless allow a person to be naturalised, despite them not being able to meet this requirement. The Secretary of State is provided with the power to use this discretion flexibly in exceptional circumstances and in respect of the specific circumstances of a case.
	We do not wish to set down in regulations particular classes of cases where the discretion will normally be used, as the expectation is that discretion will be applied only in exceptional circumstances. We will, however, set down in advance, and make publicly available, guidance regarding the circumstances in which this discretion may be applied.
	The noble Baroness raised a question concerning the rights of the child, but I have to confess that I am not currently in a position to provide the information that she wants. As she rightly said, that matter will be part of the debate on a later amendment and later clause. I hope that the noble Baroness will feel able to withdraw the amendment.

Lord Avebury: I rise only to draw attention to the fact that this is yet another case where guidance is expected to be published on how discretion is to be exercised, and quite an important one, because, in this case, the Secretary of State is taking power to deem that a relevant family association continues to exist although it has in fact broken down since the date of the application. It is crucial, if we get to the end of the period and a relationship has broken down for whatever reason, to know how that discretion will be exercised. We are completely in the dark, as so often with the Bill.
	I have lost count of the number of times when the Minister has assured us that guidance will be published and that we will get it in good time, no doubt before Report. Your Lordships are supposed to be discussing the matter in Committee. If we have to wait until Report, it is a bit late to make any alterations or suggest ways in which the Government could improve the guidance, assuming that we have seen it by then. This is a very unsatisfactory way of discussing a Bill of any kind, but especially one that affects the human rights of vulnerable people, as this Bill does. I regret that the Minister has had to keep on getting up to tell us that guidance will be published and that we will see it sooner or later.

Lord Brett: I recognise the noble Lord's frustration and, to some extent, I share it in having to deliver that unpalatable message. On this occasion, perhaps I may say that we are clear that a person who wants to be naturalised under Section 6(2) should demonstrate that they have a relevant family association. However, we recognise that in some cases, limited cases, that connection may have ended, and it would be wrong to refuse an application for citizenship because of that. As I said, we expect that that discretion will be used only in exceptional cases. However, an example where we might apply it—this is the obvious one—would be where a person is bereaved shortly before the qualifying period was due to be completed.
	I am sorry that I cannot go further than that, but I take the admonishment to heart and will seek to provide the information at the earliest possible opportunity.

Baroness Miller of Chilthorne Domer: The Minister said in reply to me that he would be bringing forward guidance "in advance". Now he has just used a different phrase: "at the earliest possible opportunity". Will that be before Report? That has a huge bearing on how much we need to think about further amendments, and so on. My noble friend has aired the frustration on these Benches, which I am sure is shared by the Conservative Front Bench—the noble Baroness, Lady Hanham, is nodding.
	I gave the specific example of domestic violence. That is a very serious case. It would be very helpful if the Government, even if they do not have the final guidance, could give us a list of what would constitute exceptional cases, for example. I shall give the Minister a chance to elucidate a bit further.

Lord Brett: First, I have an explanation. "In advance" meant that and "as soon as possible" was an attempt to take on board the urgency and frustration expressed from the Liberal Front Bench and elsewhere that we are asking people to make decisions and to discuss matters without total information.
	It is unlikely that we will be able to produce the guidance by Report, but the noble Baroness makes the valid point that we should try as far as possible to produce those cases—I have used the case of bereavement; she has used the case of domestic violence—that would clearly be relevant. Those are but two examples that might be added to. I hope that officials will take note of the Committee's concern and that we will have that available as soon as we can.

Baroness Miller of Chilthorne Domer: I thank the Minister for his reply. In withdrawing the amendment, I should say that we will therefore be minded at least to table an amendment listing things that we would see as exceptional so that the Government can confirm or otherwise whether they would be. If something more comes from the Minister in writing before Report, we will obviously think about it. In the mean time, I beg leave to withdraw the amendment.
	Amendment 56A withdrawn.
	Amendment 57
	 Moved by Lord West of Spithead
	57: Clause 38, page 29, leave out lines 16 to 18 and insert—
	"(c) that, subject to sub-paragraph (5)—
	(i) A had a relevant family association for the whole of the qualifying period, and
	(ii) A had a qualifying immigration status for the whole of that period;"
	Amendment 57 agreed.
	Amendment 58 not moved.
	Amendment 59
	 Moved by Lord Avebury
	59: Clause 38, page 29, leave out lines 16 to 18

Lord Avebury: Currently, a migrant in the UK with temporary leave who has entered on the basis of marriage or civil partnership with a British citizen can apply for citizenship when he has been in the UK for three years without absences of more than 270 days during that period and no more than 90 days in the last of the three years. Under the Bill, an additional provision is added that he must have spent the whole of that period in a relevant family association, the definition of which is again to be prescribed in regulations that we have not yet seen under Section 41 of the BNA and, therefore, as I understand it, not subject to parliamentary scrutiny. The Minister will correct me if I am wrong, but I think that the power under Section 41 does not provide for either negative or affirmative resolution of Parliament but is at the absolute discretion of the Secretary of State.
	Presumably, the Government are concerned with people who use the marriage or civil partnership route as a device to gain entry into the United Kingdom without having a genuine relationship. There have been many allegations in the past about bogus enforced marriages for precisely that purpose. According to the Home Affairs Select Committee in another place, the Government's Forced Marriage Unit deals with 5,000 inquiries and 300 cases of forced marriage each year. To quote from the summary of the committee's report,
	"marriage visas are still being granted in cases where the visa sponsor has been forced into marriage and compelled to sponsor the visa. Victims are being failed by the lack of a mechanism consistently to refuse entry to the UK in cases where an individual has been forced into marriage, and this failure is compounded by the absence of a mechanism by which the Government can accept information from third parties on reluctant sponsors. We recommend that visa sponsors are interviewed where there is suspicion of a forced marriage, including where suspicion is raised through information provided by third parties. We also recommend that the Government attach a power of refusal without the need for an evidential statement to visa applications in the case of reluctant sponsors".
	It seems to us that far more should have been done in the past to check the bona fides of applicants for marriage or partnership visas. To wait for three years to see whether the relationship has continued, as we will do under the Bill, is entirely the wrong approach. The resources intended to be used to check that partners are still together at the end of the three years would be far better deployed in improving checks on sponsors in the first place.
	In their response to the Select Committee, the Government increased the age at which someone can sponsor or be sponsored as a spouse from 18 to 21. They agreed to improve their current system for investigating allegations of abuse of the marriage route and to ensure that information and advice is available to sponsors, including awareness of the Forced Marriage Unit, by December 2008, and they promised to set out their approach to selective interviewing of sponsors. Can the Minister give us an update on those developments and tell us whether they have made any difference to the 40,000 marriage visas awarded in 2007? It is probably a bit early, but if he can tell us the number of marriage visas awarded in 2008, that will be interesting. What difference do the Government expect the new conditions to make at the end of the three years to the number who will apply for citizenship?
	On Amendment 63, the definition of relevant family association appears not to include dependent relatives. Are they to be covered under the Section 41 regulations? If so, why were they not mentioned in the Explanatory Notes, which lift the curtain only a little by giving the example of a partner? Will the Minister say why the dependent relative, having put in an appearance in Clause 31 of the draft partial Bill, has now disappeared without trace? Amendment 63 ensures that the migrants whose UK partners have a right of abode in the UK or have acquired a permanent entitlement to reside in the UK under European law can apply for citizenship on the same basis as if the UK partner was a British citizen or had permanent residence.
	We need to ask the Minister about the Government's intentions regarding the right of abode, which the partial Bill proposed to remove altogether. I recognise that we have a Commonwealth right of abode under Clause 45(5), but since the definition is unclear, we are not certain whether every person with an existing right of abode is covered by the new status. I would be grateful if the Minister would elucidate that point. I beg to move.

Lord Brett: The noble Lord asked a series of questions about marriage visas and so on, about which, frankly, I do not have the information in my brief, so, yet again, I have to fall back on the proposal that I write to the noble Lord and let him have the information. I offer the list that comprises the relevant family associations that count. I have to say that the exact content of the regulations is yet to be determined, but we are considering whether to include the following groups: unmarried and same-sex partnerships of British citizens and permanent residents; bereaved spouses and civil partners; unmarried and same-sex partners of British citizens and permanent residents; victims of domestic violence of British citizens and permanent residents; dependent relatives of British citizens and permanent residents; and persons exercising access to rights to a child's residency in the UK.
	The regulations are likely to include other conditions recognising unmarried partners if they have been in a relationship for two years, which is the normal term—we do not intend to change it. When the regulations are presented they will be subject to the negative resolution procedure. We are clear that forced marriage is an abhorrent crime and that the Government will do everything we can to stamp it out and support victims. Guidance on the whole immigration system is being prepared for publication as a result of the public consultation next year.
	The principles behind the Bill's proposals are to provide three separate routes and therefore we require people to pass through these stages as I have indicated. These are the key principles that underline it. We have said that migrants who come here have to work, but we also want to take care of the exceptions in those circumstances we expect in terms of discretion. I regret to say that I have to fall back again on writing to the noble Lord. As I have said, the consultation continues on what will be the guidance subject to the negative procedures.

Lord Avebury: I suppose that one has to be content with small mercies. I have to thank the Minister for correcting me on the subject of regulations made under Section 41 of the British Nationality Act 1981. At least they are subject to negative resolution and we will have an opportunity to discuss them on the Floor of the House, which is better than I was thinking in the first instance: that it was being left to the discretion of the Secretary of State.
	The Government have been giving serious consideration to further measures following the sixth report of the Select Committee in another place on forced marriages. We are grateful for what it has done so far and I was glad to hear what the noble Lord said about the seriousness with which the Government take the question of forced marriages. It would be useful, however, to know whether the steps that they already took, which I recapitulated a little earlier, had begun to make any difference. I refer to raising the age from 18 to 21; the improvement of the current system for investigating allegations of the marriage route; and, particularly, ensuring that advice and information is available to sponsors, including awareness of the Forced Marriage Unit. The Select Committee promised that it would respond by December 2008. The noble Lord might have had some news on the matter, but if further measures are being contemplated that would reduce the number of forced marriages, I would be glad to hear about them. However, it does not prevent me insisting that the real solution to forced marriages is to have more thorough vetting of the applications and, in particular, of the knowledge of them by sponsors.
	I was flabbergasted to learn that because of the number of visa applications—they amounted to 40,000 in 2007—no regular interviewing of sponsors was carried out to find out whether they were genuine and intending to marry the person concerned. There has been considerable abuse of this route and there have been repeated assurances by Secretaries of State going back to Mr David Blunkett some years ago that there was to be a clampdown and all measures that could be taken to avoid forced marriages had been accomplished, yet every time we have a new Bill, fresh measures are announced.
	This is an important issue to which we probably have to return on Report. For the time being, I beg leave to withdraw the amendment.
	Amendment 59 withdrawn.
	Amendment 60
	 Moved by Lord West of Spithead
	60: Clause 38, page 29, line 19, leave out from "application" to "and" in line 22 and insert "—
	(i) A has probationary citizenship leave, or permanent residence leave, based on A's having the relevant family association referred to in section 6(2), or
	(ii) A has a qualifying CTA entitlement or a Commonwealth right of abode;"
	Amendment 60 agreed.
	Amendment 61 not moved.

Baroness Gibson of Market Rasen: I understand that Amendment No. 61A has not been withdrawn.

Lord Hylton: I think that this has already been discussed, so I do not intend to move it now.
	Amendment 61A not moved.
	Amendments 61B to 63 not moved.
	Amendment 64
	 Moved by Lord West of Spithead
	64: Clause 38, page 30, line 1, leave out from "leave" to end of line 3 and insert "—
	(a) the requirement specified in sub-paragraph (2)(c)(i) is fulfilled only if A was that person's partner for the whole of the qualifying period, and
	(b) for the purposes of sub-paragraph (2)(c)(ii), A can rely upon having a qualifying immigration status falling within paragraph 4A(1)(a), (b) or (c) only if that partnership is the relevant family association upon which the leave to which the status relates is based."
	Amendment 64 agreed.
	Amendment 65
	 Moved by Lord West of Spithead
	65: Clause 38, page 30, line 9, at end insert—
	"(7) For the purposes of sub-paragraph (5), the relationship by reference to which A and the other person are partners need not be of the same description for the whole of the qualifying period.""
	Amendment 65 agreed.
	Amendments 66 to 76
	 Moved by Lord West of Spithead
	66: Clause 38, page 30, leave out lines 21 to 25 and insert—
	"( ) treat A as fulfilling the requirement specified in paragraph 3(2)(c)(i) (including where it can be fulfilled only as set out in paragraph 3(5)) where a relevant family association of A's has ceased to exist;"
	67: Clause 38, page 30, line 27, leave out first "3(2)(c)" insert "3(2)(c)(ii)"
	68: Clause 38, page 30, line 27, leave out second "3(2)(c)" insert "3(2)(c)(ii)"
	69: Clause 38, page 31, line 2, leave out "A" and insert "Subject to paragraph 3(5), a"
	70: Clause 38, page 31, line 4, at end insert "based on a relevant family association"
	71: Clause 38, page 31, line 5, leave out "; or" and insert "based on a relevant family association;"
	72: Clause 38, page 31, line 6, at end insert "based on a relevant family association;
	( ) a qualifying CTA entitlement; or
	( ) a Commonwealth right of abode."
	73: Clause 38, page 31, leave out lines 7 to 9 and insert—
	"( ) For the purposes of paragraph 3 and this paragraph, the leave mentioned in sub-paragraph (1)(a), (b) or (c) is based on a relevant family association if it was granted on the basis of the person having a relevant family association."
	74: Clause 38, page 31, line 12, leave out "based on" and insert "and"
	75: Clause 38, page 31, line 15, leave out "rely on" and insert "have"
	76: Clause 38, page 31, leave out lines 17 to 21 and insert—
	"( ) Where, by virtue of sub-paragraph (3)(a), a person relies upon having more than one qualifying immigration status falling within sub-paragraph (1)(a), (b) or (c)—
	(a) subject to paragraph 3(5), it is not necessary that the leave to which each status relates is based on the same relevant family association, and
	(b) in a case where paragraph 3(5) applies, the relationship by reference to which the persons referred to in paragraph 3(5) are partners need not be of the same description in respect of each grant of leave.""
	Amendments 66 to 76 agreed.
	Clause 38, as amended, agreed.
	Clause 39 : The qualifying period
	Amendment 77
	 Moved by Baroness Hanham
	77: Clause 39, page 31, line 28, leave out from "period" to end of line 29 and insert "is—
	(a) 6 years in a case within paragraph 1;
	(b) 3 years in a case within paragraph 3."

Baroness Hanham: I am moving the amendment to try to find out what the Government mean when they include the activity section in Clause 39. May I at the outset declare my interest as chair of the England Volunteering Development Council, which is part of Volunteering England? I have been briefed by Volunteering England and also by the Joint Council for the Welfare of Immigrants.
	There are considerable concerns about the requirement, some of which have been expressed in the House this afternoon. Volunteering England is a member of the design group. We are not going to do anything about the design group this afternoon, but it is apparently drawing up the regulations which will govern this aspect. We do not have the regulations before us and therefore we have no idea how the design group is designing what it means by "activity". I know that Volunteering England has taken a major part in this, but it has also put forward some of its concerns to the meetings. However, the legislation is here and now and we need to deal with some of the anxieties that have been raised, otherwise opportunities to do so will fade away.
	Volunteering is by definition an undertaking that individuals want to do: they want to do it to help others. It is not usual—in fact, I think it is probably unheard of—for it to be a statutory requirement, or one that affects people's future, but that is what it would be under Clause 39. It is there to expedite the route to citizenship. It is blackmail, to some extent, in that by undertaking a voluntary activity you get citizenship somewhat quicker. However, to do that, individuals will have to undertake either community or voluntary work. It begs a number of questions that might have been answered if the design group had completed its work; but it has not.
	In 2007, according to Home Office figures, there were 160,980 applications for British citizenship. There were 164,635 grants of British citizenship in that year. If we extrapolate those figures, we can presume that even if the regulations for citizenship are tightened up, there will be about 160,000 people wandering around trying to do voluntary work. There are 190,000 registered charities and probably just as many small unregistered ones which may or may not have to be licensed to undertake or help with this voluntary activity.
	People coming into this country and wanting citizenship all have a very firm view of why they want to be here. But how many of them will know or understand about voluntary service? How many of them will know or understand what they should be doing? How many of them will know or understand how to go about it? And how will they then find those volunteering opportunities? Aspiring citizens may not have any idea where to look for volunteering opportunities in an area.
	What will be the mechanism by which they are guided or advised on how to undertake this requirement? How much leeway will be given in the amount of time they have to do this work when they are working to keep themselves in this country? They are actually working. They may have a family to support and manage, and they may well have very limited hours to spend outside their home. Many are already working all the hours God gave them to ensure that they meet other citizenship requirements.
	What is the time commitment they will have to give to this activity requirement in order to qualify for and justify their expedited citizenship? What about those who simply cannot undertake it, such as those working for a very substantial part of the day and those with families? Will there be an exemption for certain categories? If so, who will give it?
	Who will monitor the voluntary work that is carried out, and how will it be assessed and proved? I understand that part of the system which the design group is working out is that there will be a referee to complete the applicant's paperwork. But who is that to be, and how can there be confidence that such a referee will have proper and regular direct contact with a volunteer to be able to judge whether they have in fact carried out the activity to the proper, required level? Where will the referees come from, and will they have to have a certain seniority level? These questions will continue. They should have been answered before we started on this legislation.
	We have reason to believe that a nationality checking service will play a role in signing off the volunteer and sending those signed-off papers to the UK Border Agency. But where does this come from? It is not in the legislation—we do not know anything about it. Perhaps we could be told at some stage what it is. Have the Government made any attempt to assess what extra burdens carrying out the responsibility for these migrants will place on the voluntary sector and on local authorities, which I understand are also to be involved in supporting the nationality checking service?
	Can the Minister give any assurances about the stage at which this activity is likely to be undertaken during the citizenship process? Can it be at any time? Does it have to be part of the probationary period? Can it be undertaken for a short time, or a long time? For how many hours should it be undertaken? What is the expectation? Will childcare be paid for? What about travel and all the other costs associated with volunteering requirements, and will that be funded by the UK Border Agency? Given that employees are statutorily entitled to a minimum of 24 days a year, how can the Government be sure that that requirement for this activity will not have to be taken out of those 24 and therefore not breach this legal entitlement? Will employers be required to give these employees time off to undertake this voluntary activity without jeopardising their employment?
	These questions are only the tip of the iceberg—there are many more. Presumably the design group will try to answer them. We can brief the Minister on any other aspect he wishes. This enormous proposal is dealt with in just two short lines of legislation, with nothing to back it up.
	The Minister must understand that this would be the first national scheme in which the state directly rewarded people for volunteering. The design group is clearly important in ensuring that all the problems which I have outlined are overcome. However, when will we have sight of its work? I am advised that it might not be until the summer, but by then this legislation will be on the books and it will be way past Parliament's ability to deal with it. Ideally, we should be able to see what the design group is doing before Report so that we can consider it. This is another area where a letter might be almost too little to explain all that is going on. I hope the Minister can make a good fist of trying to explain it. I beg to move.

Lord Wallace of Saltaire: In speaking to this group of amendments I wish to raise many of the questions that the noble Baroness, Lady Hanham, has raised. I spent the past two Sundays taking part in voluntary activities: delivering leaflets for the Liberal Democrats in Huddersfield on the first Sunday and delivering leaflets for the Liberal Democrats in Streatham on the second Sunday. I am not sure whether that is the sort of voluntary activity that counts under this provision. I can assure noble Lords that we are a non-profit organisation; we are usually loss-making. I raise the point simply to illustrate the problem of defining voluntary activities.
	The provision raises a huge number of issues. I have been involved in other discussions, for example on whether we can resolve the issue of students overstaying in Britain by licensing educational institutions so that we have a clearer sense of where students applying to study in Britain are going. We have consistently been told that it is far too complicated to license educational institutions, so controls on each student have to be imposed. We are talking now about licensing a huge number of charities, with full CRB checks on people on a truly vast scale. I am a trustee of two charities and, as both deal with teaching music to children, CRB checks are a major preoccupation for both. Despite the fact that as a trustee I do not usually meet the children, I had to be CRB-checked as well.
	This provision has a huge number of implications. We on these Benches have some sympathy with the government citizenship agenda, although we are not sure we would go all the way down the road as far as Jack Straw's rights and responsibilities agenda. We recognise this is all part of that. We are highly doubtful, however, whether it is right to introduce one bit of this in one Bill before we have seen the entire discussion. The citizenship agenda needs active discussion across the parties on how we are going to re-define British citizenship for current citizens as well as for applicants for citizenship. It needs to be taken slowly and gently. We on these Benches, therefore, are not at all sure that this is the right place to introduce one small part of a very large number of issues.
	Citizenship is something we want people to engage in. References and recommendations are part of it. I have been to citizenship ceremonies. I recognise the importance of encouraging people to have a sense of identification with the United Kingdom. The danger is that a highly bureaucratic process in which compulsory volunteering, so to speak, is built in, all checked by the central state, will be a very complicated road to go down. We need to see much more than we have yet seen about how it might be implemented, how much it might cost, and how many difficulties and costs it will impose upon voluntary organisations and charities which will be engaged in this before we are happy with the direction in which it is going.

Baroness Butler-Sloss: I understand and sympathise with the spirit that lies behind the Government's proposal for activities, but I respectfully agree with the noble Baroness, Lady Hanham, that it is impossible to know at the moment, with no definition and no interpretation clause, what is meant by "activities". UNISON, in its briefing, understandably asks whether trade union activities are part of voluntary activities. I would expect this Government to say yes, but it is interesting that UNISON feels that it needs to ask that question.
	The point about the CRB is extremely valid. CRB checks take up a vast amount of time. Some of the most important work done currently in the voluntary sector is not only with children but also with vulnerable adults. You have to be CRB checked to work with vulnerable adults. If you do not have a CRB check, that cuts out a huge part of voluntary activities. How on earth is the Government going to monitor them? Are they going to list those that are acceptable and those that are not? This seems an interesting and in some ways rather charming idea, but one that is almost impossible effectively to implement.

Lord Lea of Crondall: I totally understand the difficulty that noble Lords have in visualising how the whole of Clause 39 might work in practice, but let us not throw out the baby with the bathwater at this stage. Surely, at this stage, we want to discuss some of the principles of activities, which are to be applauded, to integrate people into society. In a few moments, I will be moving Amendment 83 specifically concerning trade unions. I will not, therefore, make that speech now. Noble Lords who have spoken, such as the noble Baroness, Lady Hanham, the noble Lord, Lord Wallace of Saltaire, and the distinguished noble and learned Baroness, Lady Butler-Sloss, are asking questions that will surely have to be clarified at some stage, but the idea that we should remove the whole thing lock, stock and barrel at this stage seems wrong.
	UNISON has been mentioned. My noble friend Lord Morris of Handsworth will correct me if I am wrong, but the Transport and General Workers' Union several years ago started a group. I do not think that it was called "Group for Illegal Immigrants"—it could hardly have been called that—but that was close to what it meant. It had a lot of activities that helped people to integrate into the community.
	The principle here is very challenging. It is certainly absolutely relevant to some of the nightmares that people are always describing for the future, whether it is Islamicisation or some horror story that some people want to attach to that, or any such worries. How will they be addressed? They will be addressed by activities that integrate people into one society. That surely is not a principle that we can run away from and throw out of the window the first time that it is mentioned. More work needs to be done. I will be opposing this amendment if, as I suspect, it is designed to get rid of the whole idea.

Lord Patten: I entirely agree with the noble Lord, Lord Lea of Crondall, inasmuch as anything that helps people to integrate into our country from wherever they come is a good thing. We would all agree with that. Having said that, I would like to strongly support what my noble friend Baroness Hanham said in her introductory remarks. I just about restrain myself from wishing to return to the meat on the bone of the nonsense in terms of formal logic of anything that is compulsory, or semi-compulsory, or quasi-compulsory or opt-in being in any sense voluntary. I am sorry to use such an indelicate word as "nonsense" in your Lordships' House—I know that it offends the ears of many of your Lordships—but I do recognise a nonsense, particularly a nonsense on stilts, when I see one.
	I would like to expand on one point that my noble friend Lady Hanham raised, which is the burden on voluntary charitable organisations, the third sector or call them what you will, at a time when many such organisations are suffering from a host of problems. Some have made unwise investments and have found their investment income, because of Icelandic adventures and so on, falling like a stone. Still more are seeing their charitable income falling. Understandably, some would say, because of the plight of the unemployed and others who feel that they are threatened by the prospect of unemployment, people may no longer be able to meet those standing orders that they have been giving so willingly. It is the hope of all us, however, that we will be able to continue to help voluntary organisations. We know that some voluntary organisations are laying off staff or failing to fulfil employment beyond a certain period under employment legislation. As my noble friend Lady Hanham said, should the Government have their way, a considerable burden will fall on voluntary organisations.
	I have a straightforward question for the Minister. It will cost money to these voluntary organisations and charities to carry out some of this monitoring. That goes without saying. Some people who may have been dragooned into volunteering may be disinclined to do it seriously. We see this with community service from time to time. Will each volunteer, whether wholehearted or semi-wholehearted, be carrying with them in the pursuit of citizenship a sum of money that will be a subvention to voluntary or charitable organisations—the third sector—to allow them to meet this burden that is suddenly going to be laid on them by statute without any recompense?

Lord Roberts of Llandudno: The questions for the criteria of acceptance of citizenship include knowledge of background. I have seen some of the questions. They are the equivalent of "How high is Mount Snowdon?". These are questions about things that some people know about and others do not. We have to make sure that, when we test a person's background knowledge, it is relevant to the lives that they are going to lead here in the United Kingdom.
	We also talked about language a little while ago. If people want to settle in Scotland, Wales or Northern Ireland—places other than England—the background must be about the localities in which they actually want to live. I am sure that the people of Llandudno would love to know more about Oxfordshire or somewhere like that, but it is more important that they know a wee bit about their own area. This is my first point: people need to know the background of the place in which they will be living and not be made to answer questions of the type found in Trivial Pursuit.
	Secondly, on the question of volunteering, I agree that this must be thought through fully. It needs to be taken back to the drawing board. Who is going to volunteer, or is it going to be like one organisation that I know of—it shall remain nameless—part of which is moving to another area of the United Kingdom? The organisation wants its people to integrate into the local community. For two weeks each year, people are going to be encouraged to volunteer. But that organisation is going about that by asking local groups what help is needed in the particular area. Instead of someone volunteering, information about requirements is put forward by local organisations and the organisation responds to that information.
	We are asking a lot of the migrants who are seeking to come here. They must do what 80 per cent of the people of the United Kingdom do not do. We are asking them to know about things that most of the people of the UK do not know about. What I am saying, therefore, is this: yes, it is a nice dream—someone said that it is a charming idea, and it is—but it needs to be thoroughly worked out so that people know exactly where they are. We do not want something that is a dream for the immigration authorities becoming a nightmare for those applying for status here.

Lord Morris of Handsworth: The issues that underpin Clause 39 need to be explored in terms of whether they will be an incentive to those moving towards citizenship or a deterrent. I am not sure that the explanation given at Second Reading and in the debate so far is all that clear. I start from the position that we ought all to want to be volunteers in our communities—they are our communities and we have ownership of them, so we should make a contribution. It is about enhancing an individual's contribution and building up what I would describe as social capital in our communities. However, we need to dissect the principles of volunteering, building social capital and making opportunities for those who want to settle well in their local communities.
	However, I question why there has to be a penalty for those who do not volunteer or take advantage of the opportunities offered by this form of fast-tracking to full citizenship. If criteria involving penalties are set, an assessment has to be made. Someone has to determine whether the quantitative and qualitative value has been sufficiently met. Again, there is an eerie silence around some of these fundamental questions.
	There are also issues around responsibility, whether fiduciary or otherwise. What happens if there is an accident on a volunteering project or expectations for a proposal are not met in qualitative terms? These matters require consideration, but more important is that they require consultation. At this point I am not satisfied that the proposition as a principle is worthy of support and consideration because it has not been sufficiently thought through in the detail of its application. I would certainly want to seek to persuade the Minister to look again not just at the principle but at the detail and some of the inherent problems for which solutions to the satisfaction of your Lordships' House have not yet been found.

Lord Hylton: I should like to follow the noble Lord, Lord Morris, in asking for consultation and postponement. The concept of taking part in social activities as an aid to integration is clearly a good one, but there is such a fog of uncertainty surrounding it at present that we need time to think it through and see if it can be done. Will we be able to include trades union activities, party-political work and so on? We need to be able to get the right exemptions for the disabled, for example, or for those caring for disabled people. I agree strongly with the noble Lord, Lord Patten, about the problems facing voluntary organisations, so I urge the Government to postpone the whole idea at least until after the simplification Bill that we have been promised. If that could be done, I think that we will get much better results from it.

Baroness Howe of Idlicote: "Volunteering" is a very attractive word today, but I have to say that I go back to the days when, if you were caught volunteering, as I was quite a number of years ago, it was called scab labour. Thankfully, volunteering has become much more respected in terms of how we view offering mutual help to other citizens. However, I go back to the question that I raised at Second Reading. This amendment raises many questions, several of which have been rehearsed already. How costly will the scheme be and what financial provision is to be made available for it?
	I am worried about what could be regarded as the reward of a reduction in the qualifying period for citizenship, or indeed the penalty, whichever way you want to look at it. If, as someone suggested, we are returning to a period when many people are out of work, it may be that the answer is compulsory volunteering in the form of national service, as it used to be called. That could be on the agenda for everyone. If that was the case, I would be much keener on supporting this, as it would not create two distinct classes of citizenship. Until we reach the point where we think that this is essential to our understanding of what it is to be a British citizen—about rights and responsibilities, both terms with which I agree—I remain unenthusiastic. On top of that, we have to consider how little we know about the scheme beyond the fact that the design group is going to be spelt out, presumably at a later date.
	What I am really saying is that I query whether it is even remotely the right route to go down for those who are trying to acquire citizenship. Of course, this is particularly tough on those, particularly refugees, who have already been waiting for a long period and will either have to wait even longer or go down this route. I am thoroughly behind these amendments and would love to think that the Government will rethink.

Lord Avebury: I wonder how we can penetrate the "fog of uncertainty", as the noble Lord, Lord Hylton, described it, from the point of view of the migrant, who arrives here and has to undertake certain voluntary activity. As was explained to us when we had one of our helpful discussions with the Minister, many of the activities would be purely local so that local churches and voluntary organisations would be enlisted to provide the occupations. How will the individual migrant access those bodies?
	To take my own area of Camberwell, there are millions—or certainly dozens—of voluntary groups operating in the area. It would be difficult enough for even a well-disposed local person who knew the ropes to discover which particular voluntary organisation fitted his own aptitudes and talents, let alone somebody from the Democratic Republic of Congo who is unfamiliar with our environment. How does he begin to discover which voluntary activities would be acceptable for qualifying? Will there be a central organisation with a list of them? What advice will be available to the individual migrant, so that he does something that is within his own aptitudes and talents? I ask the Minister a specific question: will this simply be left to the existing organisations—in, say, Camberwell—or will there be a central point to which the migrant has access, which will offer him useful advice on the sort of work that would fit his aptitudes and take him on the path to being an integral part of the community?

The Earl of Sandwich: I join the chorus of support for the amendment moved by the noble Baroness, Lady Hanham. If there is one issue that really fires up this House, it is volunteering. If the Government get it wrong, they will find themselves in a very small minority in the Lobby. They have to take great care over this. I admire the noble Lord, Lord Lea, for batting in support of his Front Bench, but the noble Lord, Lord Morris, has hit the nail much more firmly on the head. The only new thought that I can offer—because everything has been said—is that the Minister could just consider that what is on somebody's curriculum vitae is surely much more reliable. This could be translated into legislation, but volunteering will never work if it is required.

Lord Brooke of Sutton Mandeville: I fear that I may be descending from the general to the particular, but I have just alluded, on Clause 38(2), to the second Delegated Powers Committee reference. Clause 39 provides the third and final comment about the Delegated Powers Committee in this Bill. I could wait until we get to Clause 39(3), where there is an amendment to be debated, but it may be easier if I mention it now, after the general reference by my noble friend Lady Hanham to activity.
	I need to read the comment of the Delegated Powers Committee' on Clause 39(3), to provide the background. It said:
	"The new power in paragraph (bc)"—
	which, I interpolate, is at the top of page 32 of the Bill—
	"inserted in Section 41(1) of the 1981 Act by clause 39(2), confers power to substitute different qualifying periods in new paragraph 4B(3) and (4), again by affirmative regulations; and the new subsection (1B) (clause 39(3)) enables that power to be exercised so as to substitute the same qualifying period, irrespective of whether or not 'the activity condition' is satisfied. Paragraphs 46 to 49 of the department's memorandum"—
	which is reprinted in the third report of the Delegated Powers Committee—
	"do not provide any explanation of the purpose of this power, the exercise of which would leave paragraph 4B making separate but identical provision for persons who had, and for persons who had not, satisfied 'the activity provision', without any advantage conferred on the former over the latter in terms of the qualifying period. While the delegated power in clause 39(3) might not necessarily be inappropriate on that ground, its exercise would seem to produce a somewhat odd result which is not explained in either the Notes or the memorandum. We"—
	that is, obviously, the Delegated Powers Committee—
	"therefore draw attention to this aspect of the power, so that the House might press the Minister for more details of the circumstances in which it might be used".
	I am not seeking tonight to unsight the Minister on this Delegated Powers Committee reference, but he said on Clause 38(2) that he had the government reply with him then. It might be helpful, if he has a response to their comment on Clause 39(3) about his person now, for him to give it to the Committee this evening, rather than wait for Report, when we have plenty in store anyway.

Baroness Falkner of Margravine: I think the Minister will have a very clear idea of the views of the Chamber on this amendment. The Second Reading debate on this activity requirement was also most interesting. I apologise to the Chamber for not having been here to speak at Second Reading. I am more sympathetic to what the Government are trying to achieve than most speakers today. It boils down to three central matters. First, there are those who oppose incentives for volunteering per se, and who feel that any kind of incentive obviates the very nature of the deed. I would call them the volunteering purists. The Minister must make clear in his reply that we are talking about an incentive, and not compulsion. Many noble Lords have talked about volunteering as if it were a compulsion or requirement. It would be helpful if the Minister could confirm my reading, which is that there is just an incentive to get you there slightly faster than if you did not volunteer.
	Secondly, there are those who believe, as my noble friend Lord Roberts does, that it is quite unfair for us to ask others to do what British people do not do themselves. My answer, as someone who has been on both sides of that fence, is very clear. Those who, through an accident of birth, end up with the privilege of British citizenship are indeed lucky. It is true that we do not question their ability to integrate. One of the reasons that we do not question that ability is because we suspect that—over a lifetime of living in certain communities, speaking a certain language and understanding certain cultural norms and mores—they probably imbibe some of the values of that society.
	Thirdly, the noble Lord, Lord Morris, spoke of social capital and trust. I have a lot of sympathy with much that he said, as long as what the Government aim to do is not seen as a means of affirming a certain patriotism, which I would also oppose. The Putnam report clearly shows that the more diverse a society is, the more trust seems to break down. This is a contested area, but no doubt the less we know about each other, the less we speak each other's languages and the less we value each other's values, the less we are able to trust each other. The building of networks that volunteering promotes is valuable social capital. However, British people do not have to go down that route and we are setting a higher bar for non-British people. I have said to the noble Lord, Lord West, under different circumstances and on other Bills about youth justice, that young people need to have more of an ethos anyway to do what is right by society and to understand the society in which they are living. Intergenerational issues could be much resolved if young people were to do a little more volunteering, frankly. I would like to see the expansion of this process to British people.
	The most serious point is that there are many who believe that the practicalities of this will be difficult to achieve and that we really have not thought it through. I am most sympathetic to those arguments. Incidentally, I do not agree that just because no other country does it Britain should not do it. Perhaps I am a radical liberal for that reason. It is quite interesting that there is good, serious thinking around some of the challenges of diversity that we face. We have become more diverse in the past 15 to 20 years than many other similarly sized European countries. I take pride in the fact that we are not responding with sledgehammers in the way that some of those other countries have responded, at least not in the challenges facing my community. It is good that we have been careful and thoughtful about what we have done there. Irrespective of how I feel about terrorism legislation, on the whole we have a good track record.
	Perhaps I can persuade the Minister, in all good will and in appreciating what the Government are trying to achieve on integration, to perhaps take away the wise words of the noble Lord, Lord Hylton, and the noble Earl, Lord Sandwich, and perhaps think about bringing back pilot schemes. I accept the difficulties of a pilot scheme in which there is no real incentive to give, but perhaps we could see how a couple of pilots work and then come back with another Bill containing a more carefully thought through and considered approach as to how we might achieve this objective.

Lord Brett: I thank all noble Lords who have contributed to the debate. Several words have been used, which I hope I can confound, such as "dragoon", "compulsion" and "burden". I am inclined to agree with "fog" because at the moment we know what we want to see but we are not quite sure what shape it will finally take. I shall deal also with the issue of volunteering.
	I start from the premise that we have described to people why we are doing what we are doing and then deal with the battery of questions about whether it is practical, how are we going to do it and whether we have thought it through. First, we are doing it because we want to integrate migrants fully into society. The advantage of what we are seeking to do is that it will bring contact between migrants and the wider community; it will show British citizens that those who seek to join them are earning their citizenships by participating in British life; and it will encourage those who want to become citizens by opening up to them new experiences and life-long rules. Active citizenship is a positive process: it is a way for migrants to earn citizenship more quickly and it will assist their integration into British society. Its purpose is to incentivise a positive attitude towards Britain. My noble friend Lord Morris feels it will do the opposite. I am pleased to note that the noble and learned Lord, Lord Goldsmith, concurs with that view. As he said in his contribution at Second Reading:
	"A credit-based system for acquiring citizenship is in principle a good thing, because it makes clearer that becoming a citizen carries with it responsibilities, not just the ability to stand in a shorter queue at Heathrow. For those reasons, it seems right to be able to change the length of that journey through participating in the community in a stronger and more active way".—[Official Report, 11/2/09; col. 1146.]
	I think there will be a large degree of support for the things I have said so far. However, the questions that came forward were very much in relation to where we go from here.
	Let me be absolutely clear: there is no mandatory requirement for any migrant to undertake active citizenship; migrants who are unwilling to undertake any form of active citizenship can simply choose not to do so. They are not prevented from qualifying for citizenship but it will take two years longer than for those who choose to undertake citizenship activities. We have been careful in developing the citizenship activities proposals in such a way that they do not discriminate against any person or group.
	It is essential that the activities that count are separate from those that migrants undertake as part of their day-to-day employment. Therefore we propose that participation in prescribed activities will count only when it is unpaid, which answers a number of noble Lords' questions about what they see as potential problems. We clearly want as many migrants as possible to undertake active citizenship. However, we recognise that in certain circumstances—for example, in the case of the severely disabled—a migrant may simply be unable to undertake any of the citizenship activities. That is why the Bill allows regulations to be made which treat specific types of persons as having fulfilled the activity conditions even though they have not. Therefore Amendment 83A is not necessary.
	It is essential that the activities that count as active citizenship represent an extra effort to get involved in the community and are additional to those activities that migrants undertake as part of their day-to-day employment. Hence the prescribed activities will count only where they are unpaid. At the same time, we have made it clear that active citizenship must be designed so that migrants, even where they have significant commitments—for example, work or family-related activities, which were a concern mentioned in the debate—will be able to fulfil the requirements. That is why it is right that people should be able to demonstrate their willingness to participate at any point from the start of the journey—not from the start as a probationary citizen but from the start of the qualifying period; in other words, from the five years preceding it.
	We have permitted a wide range of activities to ensure that migrants can utilise their particular skills and interests—that is why Amendment 82 is not appropriate—and we have established a design group. This involves local authority and voluntary sector representatives advising us on the practical operation of active citizenship. This is because we want to avoid some of the words used in the debate to describe it, such as "bureaucratic" and "dragooning". We want to see a level of commitment that we should expect migrants to demonstrate and we will work with the design group to ensure that active citizenship proposals are implemented in a fair and non-discriminatory way.
	All the questions asked have been perfectly fair. In responding to some of them, it would be quite helpful to recognise that this is still work in progress. To reassure the noble Baroness, Lady Hanham, I should say that when the design group has completed its work and we have a formal picture of what it has designed for active participation, that will be subject to an affirmative resolution of the House. So it is not that the House will not have a clear sight of it and an ability to object.
	I placed a document in the Library last week which I hope the Committee will find helpful—I know that the spokesmen on the Opposition Front Benches have seen it—which outlines the emerging findings of the design group. Again, it covers and meets, at least partially, many of the questions noble Lords have been asking about the type of activities involved and the type of organisations that will be required to be both the referee and the monitor. The list is not yet exhaustive; it can be added to. Any suggestions that people have will be referred to the design group for its consideration, but it already covers volunteering at local museums, conservation work, local environment protection and improvement projects, lunch clubs for the elderly—there is a whole series of examples of what might be suitable.
	We have also set out in that document a Q&A, which I recommend people should digest because it goes some way to answering the questions that have been posed today. It is not complete but, when it is, it will outline the work of those closely associated with the organisation of the volunteering to which we are looking forward. I take the point made by a number of noble Lords. The noble Lord, Lord Patten, imagined that we would be walking round with bagfuls of money. I will have to disabuse him of that.
	We are working closely through the design group with the voluntary organisations that will be impacted on by active citizenship to ensure that we implement a system that does not place undue burdens on them. So far those organisations have been supportive of our proposals and have not raised major concerns about the cost schemes would incur. A plus for those organisations would be the work done by volunteers. Those who are closest to the problem, who we are listening to for advice and who will be the people designing a scheme to monitor this do not seem to have concerns to the degree that your Lordships have.
	The list set out in the document in the Library goes a long way to answering a number of other questions. The noble Lord, Lord Wallace of Saltaire, asked if migrants can count activities they were doing before the commencement of citizenship provisions towards active citizenship requirements. The answer is yes. Other noble Lords who raised questions about particular aspects of that can be answered in the affirmative. Greater detail can be read in that document.
	We also had a number of questions relating to dragooning. Neither the volunteer seeking to enhance and speed through citizenship nor the organisations taking volunteers are being dragooned in any way. I suspect most Members of your Lordships' House are volunteers in one form or another. Why should we expect our migrant community on entry to be less willing to be volunteers than we are ourselves? It is true that a lot of our fellow citizens choose not to be and rely on those who do volunteer but that is no reason for not moving forward.
	The noble Lord, Lord Wallace of Saltaire, asked about checking active citizenship, including the role of the National Checking Service. Again, we want to avoid a heavy-handed approach. To ensure that the organisation where active citizenship was undertaken was bona fide, while not excluding small or community-based organisations as volunteering groups, we would accept registered charities at face value. For non-registered charities and other voluntary organisations we would require an additional reference from the local authority or the CSV. Alternatively, a larger organisation could act as an umbrella monitor for smaller organisations. Again, in the discussions emerging from the design group there has not been the degree of opposition or concern that has been elucidated in this debate. That is understandable because we are talking about people who are very familiar with the concept and management of volunteering.
	The National Checking Service, for those who are not aware, is a discretionary service available in 87 local authorities. It checks applications for British citizenship, completes corrected copies and certifies all passports before returning them to the applicant straightaway. It then forwards the relevant documents the to UKBA case workers. It is an organisation with a track record. We recognise that extra bureaucracy could form a burden for organisations so it could be mitigated by partnership agreements for 12 months allowing a larger organisation to enter into agreement with a smaller organisation to measure the degree of burden.
	The noble Lord, Lord Avebury, and other noble Lords asked how applicants will find out about volunteering opportunities. Many migrants already volunteer so will not need to be signposted. For those who chose to take up active citizenship we envisage volunteer centres being able to signpost migrants to organisations looking for volunteers. ESOL teachers who signpost students to volunteering organisations are likely to continue to do so. Internet websites are a rich source of voluntary organisations. UKBA already funds the Refugee Integration and Employment Service which actively promotes volunteering for refugees. The noble Lord, Lord Avebury, made a valid point in relation to localities and I am sure more work can and will be done by the design group. It is important to emphasise that volunteering is not mandatory and therefore we reject any accusation that it could be seen as blackmail. We believe, rather, that it will encourage the path to citizenship.
	I hope in answering those questions and drawing attention to the questions asked which have been covered so far in the Q&A, and that work is still emerging, we can reassure your Lordships that the matter is not ill thought out. It is not necessarily fully thought through but the people seeing it through on our behalf are the very people you have confidence in to run our charities and our volunteering services. We will come back to further debate on this undoubtedly at Report. Any information that becomes available between now and then will be made available to the Committee. I have not unfortunately got a response to give to the noble Lord, Lord Brooke, on this occasion. That will have to wait until a slightly later date. The Government appreciate all the contributions made. They have been positive in the sense of wanting to see something we all want, which is the greater integration of our migrant communities. I hope the Government, as we go forward, can continue to confound those who think we have taken up something that we cannot do and to encourage, support and gain the confidence who feel we might not have done so. I hope, therefore, that noble Lords can withdraw the amendments.

Lord Wallace of Saltaire: On these Benches we are sympathetic in many ways to the principle of active citizenship. Indeed, it is precisely the sort of thing that this House should consider having a session in Committee on to get some all-party discussion about how to get the concept of active citizenship operational. I agree strongly with my noble friend Lady Falkner that we have to be as much concerned about how to give our native young people a sense of participation in the community as about those who wish to come into our community from elsewhere. So part of our concern is that this is a sideways slide into a very large national issue which we all need to address.
	We are, of course, concerned about the bureaucratic controls and the implementation. Many of the voluntary organisations with which some of us have worked are faith-based—churches, temples or mosques—and that raises some quite delicate questions about integration and how these things operate for Christian, Muslim, Hindu and other organisations. So there are many snags on the road to a praiseworthy intention. That is why we wish to see a great deal more of the detail before we accept this principle.

Baroness Hanham: I thank the Minister for his reply and for drawing our attention to the documents in the Library. It would have been helpful to have seen them before. I thank him for some of the reassurance that has been given. I want to make it clear that we are not antipathetic to the idea of voluntary service but we are antipathetic to something which does not look coherent. We need it to be written in the Bill that the recommendations of the design group—which has obviously been set up to deal with some of the problems and make sure that the practicalities are resolved—will be brought to the House for affirmative resolution. Otherwise, those recommendations may not get here and we need to ensure that they are discussed. I also assume that the commencement date for this will be separate from the other aspects. We need to test this a bit more. Are the other elements of that clause, such as language and good citizenship, going to be held up until the design group has discussed this and it has all been sorted out? Presumably Clause 39 must be implemented as a whole and not piecemeal. Therefore, there will have to be an extended starting date.
	We will almost certainly return to this at Report because the Minister's response has answered some of the questions I have raised but not all. This will benefit from another airing but for today I beg leave to withdraw the amendment.
	Amendment 77 withdrawn.
	Amendments 78 to 82 not moved.
	Amendment 83
	 Moved by Lord Lea of Crondall
	83: Clause 39, page 31, line 41, after "activities" insert "or trade union activities"

Lord Lea of Crondall: Apropos the earlier debate, I am not normally known for supporting the Government as some sort of knee-jerk reaction. I hope that my noble friend on the Front Bench who has just spoken will draw this accolade to the attention of the Chief Whip, who might need to be revived with smelling salts after he has been told that those remarks were made.
	A lot of soul-searching is going to be needed about the Bill. My fundamental instinct, though, is that that soul-searching will be not just because of the Bill but because we do not know how to go forward on the question of social integration. I shall put that another way round: for donkeys' years a lot of activities, and I include trade union activities, have done a lot of work to promote social integration and so on, but it is directed particularly at immigrants, for obvious reasons. I agreed with the thrust of the speech by the noble Baroness, Lady Falkner, but, unless I misheard her, she was saying that there are things that people who are born in this country do not have to do. No, she did not say that. I am sorry; I was trying to go along with the spirit of what she was saying.

Baroness Falkner of Margravine: I do not want to interrupt the noble Lord's train of thought, so I will be brief. I was saying that it is inevitable that people born here will imbibe certain aspects of values and cultures that those who come here as strangers to the country have not had access to from birth.

Lord Lea of Crondall: That is exactly what I thought the noble Baroness was saying, and exactly where we are on the horns of a dilemma. As soon as anyone comes up with a bright idea such as saying, "Learn English", other people say that that is discriminatory. We cannot have it both ways, and we have to make progress.
	It is important that we have this debate. The noble Lord, Lord Wallace, who is not in his place, suggested that there ought to be some totally different mechanism for monitoring and ensuring that progress is made on social integration, and I think he added that this should be for people who were born in this country as well as for others. That may be arguable, but now we have this planning group.
	Incidentally, will my noble friend say a word about where trade unions fit into this? Trade unions are by far the biggest voluntary organisations in the country. The fact that we have been sniffy over the years about some aspects of volunteering is because of the suggestion in some quarters that if you volunteer and do not get paid, that can be the same sort of work that members of UNISON, the T&G or any other unions are doing in public services, so volunteering will be viewed by some with suspicion. However, thanks to the work of the trade unions with immigrants and voluntary organisations, particularly over the past 10 years, many of those shibboleths have been put to rest.
	Anyway, we are where we are. We are at the stage where people have more or less agreed that everyone is going to learn English and support the English cricket team—at the moment, it needs all the support it can get—although I share the misgivings that we can have a rule on the statute book that means various forms of volunteering get an advantage. We have to recognise that in this debate it is almost impossible to see the daylight at the end of the proverbial tunnel, but we might as well have the debate on this subject because it is before us. I do not know whether we need a special committee to look at this, as the noble Lord, Lord Wallace of Saltaire, mentioned, but it is here and now, so let us have a debate on this subject—let us see what can actually be done.
	I do not like the idea of a probationary period, but I say to those who immediately equate incentivisation with penalty: we do not do that in other walks of life, do we? If you incentivise someone to do something, you do not immediately tear it up and say, "You're trying to impose a penalty".
	It might be useful if we all put into the pot one or two ideas regarding what we are talking about, because it is far too soon to categorise everything. Take trade unions, for example. Incidentally, everything trade unions do, apart from in the case of full-time officials, is volunteering—collective bargaining, the lot. If you are a learning representative working with migrant workers with regard to English language learning, that is absolutely relevant to what we are trying to do in the scope of a Bill of this kind. We all know, since Morecambe Bay, that social integration is often based on organisations that people trust giving them information—regarding health and safety and understanding the reach of the law on that, the Gangmasters Licensing Bill and all the rest of it—and getting them involved in protecting themselves. They then have more confidence to integrate with other people in the community.
	At this stage I am putting this probing amendment forward precisely to ensure that we have the richness of all these points in the debate. I hope that my noble friend will be able to say that the principle of this amendment is going to be looked at seriously, as with all the other matters that have been mentioned in the past half hour. I beg to move.

Lord Morris of Handsworth: I give qualified support to Amendment 83. First, though, let me say that the concluding points of the contribution of my noble friend Lord Lea of Crondall are well understood and supported. After all, many trade unions started their existence as friendly societies, not merely confined to representation at work but concerned with the wider and broader social good of communities.
	I say "qualified" support, though, because unless it is clear what we mean when we talk about "trade union activities", I see the possibility here for misunderstanding and the misrepresentation of trade unions. In my day, if you linked "trade unions" and "activities" together, you looked to see whether London buses were still running. That is what "trade union activities" conjures up in the minds of many, so we need to qualify precisely what we mean. My noble friend Lord Lea has given examples of teaching or volunteering in evening classes; we would all see those activities as good for citizen-building and integration.
	My support is qualified, however, because it is a short step from good intentions to what I would describe as project creep. By that, I mean that a lot of general activities that may well come within the list represent employment currently being carried out by people. In simple terms, one person's volunteering activities can be somebody else's paid employment. Therefore, a line of possible conflict has to be clarified. I do not want to repeat my earlier contribution in the wider debate about volunteering and where penalties may or may not lie, but I believe that it is incumbent on those with the responsibility of spelling out the details. It is the details that will be practised, whether in communities or elsewhere; it is the details that will form the guiding lines, not just the principles. We can agree the principles here, or elsewhere, but the detailed application carries with it a responsibility for your Lordships' House and for those who draw the guidelines to ensure that what is prescribed is precisely what is meant. On that basis, I offer my qualified support for Amendment 83.

Lord Judd: I was in some embarrassment on the previous debate, because I was not here for its opening and I take the procedures of the House seriously. Therefore, I did not feel that I could participate, but was frustrated because I feel strongly on the wider issue. The Committee may have noticed that I have my name both to Amendment 78, in the name of the noble Lord, Lord Avebury, and this amendment, which my noble friend Lord Lea has moved. That might seem rather contradictory, at one reading. My position is that if the amendments in the name of the noble Lord, Lord Avebury, are not to prevail, I would certainly want to see that moved by my noble friend Lord Lea taken seriously.
	I say that not only because I have been a trade union member all my life but because I believe that the trade unions have been, and remain, a very important part of our social fabric. If this is about encouraging people who seek citizenship to identify with and become involved in that social fabric, the trade unions are a very good way to do it. Having worked a great deal of my life in the voluntary sector, there is a great deal of overlapping because the trade unions are, in many instances, working hard on the very issues that some voluntary organisations exist to promote. It might well be that someone seeking citizenship found that they were more convincingly able to further some of those causes through trade union activities than via a particular voluntary agency.
	All of that underlines what was said earlier: this is a wonderfully interesting idea to have in the Bill, but while my noble friends in Government tell us often that legislation must be specific and beyond doubt—and I am with them 100 per cent on that—it has become absolutely clear that this part of the Bill needs a great deal more thought and consideration before it reaches the state of becoming part of our legislative reality.
	I must add one word to what the noble Earl, Lord Sandwich, said earlier; I am sorry to say it while he is unable to be present. Having worked a great deal of my life in the voluntary sector, I agree with the noble Earl: I am, if I may use the term unashamedly, considerably philosophically disturbed by what lies behind this part of the Bill. It seems to be in danger of demeaning the whole concept of volunteering which, as I have understood it, is about people voluntarily identifying with a cause and wanting to further it—not because they must be required to do it if they are to get citizenship. It reminds me rather of my days in the armed services, when the NCO came along and said, "I need six volunteers; you, you and you...".
	We need to keep the concept of volunteering as a rich principle in our society, because it adds to the quality of the work being done for the cause if people are genuinely volunteers, of their own free will and intellectual persuasion. Therefore, I take the opportunity of my noble friend's amendment to add my name to all those who are begging the Government to think deeply about the wider implications of what they propose and, certainly, to think it through in more detail. Quite apart from the wider issues that I have raised, when it comes to specifying voluntary service I cannot for the life of me see why trade unions should not be part of acceptable voluntary activity.

Baroness Butler-Sloss: I have already asked, at an earlier stage of the Committee, the question posed by UNISON, to which the Minister nodded his emphatic agreement. I assume, then, that the Government already agree to that which the noble Lord, Lord Lea of Crondall, asks for. However, I am standing up now because I so profoundly agree with the noble Lord, Lord Judd. Listening to the Minister's summing up—activities would always be totally voluntary and nobody would be asked to do it unless they chose to—reminds me exactly of what the noble Lord was just saying about the "you, you and you" volunteers.
	To be realistic about it, if you are to become a citizen that much quicker, you will volunteer in order to become a citizen—not because you care about the volunteering. That seems to be the immediate answer to what the Minister said in trying to convince us that this system was genuinely voluntary. It is only voluntary in the sense that you do not have to do it, but there is a major imperative to get into the activities on those who may not have the slightest interest in voluntary service. I profoundly agree with the noble Lord, Lord Judd; this really needs a lot more thought, and I am by no means certain whether it is best placed in this Bill.

Baroness Falkner of Margravine: It strikes me that I should have declared an interest when I spoke on the earlier amendment, so let me do so now. I was chief executive of a student volunteering body, Students Partnership Worldwide, and saw volunteering right up close. It seems that there is a rather romanticised view in the Committee of what volunteering is. I wonder whether those who believe that it really is so altruistic, and conducted simply because of passion for a cause, would consider internship for young people as a form of volunteering. Would they accept perhaps that many people, particularly in times of recession, wish to build up their CV and do things that others would consider to be useful contributions to society, things that would give them skills or things that might enhance the employer's perspective of the broadness of their background? Might they accept that those people do not have ill motives, because they are trying to extract some personal advantage from volunteering, but that they also perhaps have an interest in the cause? You can have multiple motives for what you do at different times of your life. It is not a matter just of needing to be persuaded by the passion of the cause. So incentives are not perverse. "Incentives where we can and compulsion almost never" would be my motto. I suggest to the Minister that he think extremely carefully before he responds affirmatively to the amendment, if that is what he intends.

Lord Judd: The noble Baroness makes some important points. Does she not agree that there is even the danger that the proposal, far from encouraging sincere commitment and integrity in the forthcoming role of citizenship, may encourage falsehood, because somebody may espouse a cause not because they believe in it at all but simply because it is a way of gaining citizenship? That is not a way of promoting integrity in the decent society. Furthermore, in terms of the credibility of the legislation, we are entering a dangerous and sensitive area in demanding such behaviour of would-be citizens when there is plenty of evidence, as has been said in earlier debate, that it is not the prevailing culture in our society. The prevailing culture, as seen by many at the moment, is that you make as much money as fast you can and that is the way in which you are a successful citizen.

Baroness Falkner of Margravine: I fear that the noble Lord, Lord Judd, did not grasp the content of what I said in my earlier intervention on the relevant amendments, because I was being extremely cautious. Perhaps I may answer his question very directly. You may have a perverse outcome, and you may go down a road that you do not sincerely believe in. However, all of us in this Chamber volunteer three or four days a week in all sorts of things—accepting a dinner invitation to be a speaker when we do not particularly want to do it and scratching our heads to think what we might say or do, or moving amendments where we are under pressure from our parties or from lobby groups towards which we feel well inclined. We often undertake activities about which we are not entirely convinced.
	My personal experience has been that when I look at the detail of things with which I am unfamiliar, when I work with people to whom I have not been exposed previously and when I venture into areas where I have no expertise, I have often developed a passion for those people and causes. I learn through my interaction with other people outside my scope of knowledge, friendships and employment. They are amazing people. So volunteering often has the opposite effect to that mentioned, particularly for migrants and newcomers to this country, because it provides the opportunity to work alongside other people who are not newcomers.
	Newcomers, particularly from my part of the world, are often ghettoised. If you are a woman, you will be ghettoised in your home and with your extended family, many of whom live with you. You will be expected to perform conventional forms of daughter-in-lawship or sister-in-lawship, or whatever else are the bases of your being there. You are seldom permitted time away from those duties, which I consider often to be unpaid domestic chores, even to do English lessons. You will live in a street full of people similar to you and you will have very few opportunities to go out of your ambit, which is often that of the village from which you previously came, and interact with other people.
	An incentive to volunteer might convince your husband that you might be let out of the house to do it. You might be given a bit of rope to be an adult and make up your own mind about what you wish to do. You might even learn a few words of the language while you are at it. From volunteering in a legal advice centre or a women's refuge, you might discover how the law works in the country for which you are applying for citizenship. Having spoken to men and women who live in those communities, I only wish that we could create the avenues for them to go out and volunteer, because it is quite often the community that holds them back and keeps them segregated. Unusually, therefore, I am not at one with the noble Lord, Lord Judd, on this matter.
	I urge the Minister to desist from agreeing to the amendment. He will have heard expressed during the previous hour and a half the divergent views on, and strong reservations about, the Bill. If we were to introduce an element of partisanship by including trade unions—the other side will say, "In that case, why not also political parties?"—we would immediately kill off any good that he is trying to achieve in the Bill, because it will not get through. I think that he will recognise that trade unions and political parties would introduce an element of incentivisation that may not be construed by others to be just for the good of active citizenship; it may be construed as a means of their recruiting members to their cause and making them partisan.
	If political parties were to come into the frame, you would have another problem. We know of many migrants who, once they have come here, want to close the door behind them. It is a common phenomenon for migrants to say, "I'm here now; we shouldn't let any more of those bloody foreigners in"—I hope that your Lordships will forgive my unparliamentary language. What would we do if joining political parties was considered active citizenship and the BNP managed to recruit a large number of members as a result? Extremist parties might benefit, too. My noble friend Lord Wallace of Saltaire mentioned religious groups whose political ethos we may not like.
	I would have thought that trade union and political party activity was ruled out because you would have to pay a membership fee. The Bill states that you cannot have financial interaction of any sort. Payment of a membership fee for passive citizenship, whereby you have joined a political party, you carry the card in your pocket, but you do nothing more than that, is not what active citizenship is about at all. I urge the Minister on that basis to resist the amendment at this stage until we have a clearer idea of where we going.

Lord Brett: With opposing views expressed, I hope to be able satisfy everybody. I should explain first that my enthusiastic nodding represented not necessarily government policy but the experience of someone who has spent most of his life in the trade union movement, a lot of it as a full-time officer and general secretary in a trade union that never paid one penny to any political party. However, I was always genuinely grateful for the many activities of the union—not those that directly benefited the membership, but those that benefited the community at large—that were carried out by people serving as nominees of the trade union's governing and regional bodies at no expense to the union and at no benefit to the people doing them. There are some 7 million people in the trade union movement who are doing a whole host of things, such as health and safety education and the various representative activities mentioned by my noble friend Lord Lea. There is a lot of opportunity there, which, in the context of volunteering overall, it would be a mistake to ignore.
	However, I am seeking to resist the amendment. It would not be appropriate to include trade union activities in the Bill. That makes it necessary for me to answer the question posed by noble friend Lord Lea, which was where trade unions fit in, and that of my noble friend Lord Morris, on qualification.
	I think that the answer is relatively simple. We should ask the design group to consult the TUC. The TUC knows which of its activities would fit in the areas that are identified as being voluntary work. We would know from that discussion how that would relate to the question of refereeing and monitoring. That would provide the opportunity to avoid some of the fears that the noble Baroness, Lady Falkner, expressed in her contribution, the first part of which I was in total agreement with. I have volunteered for a number of organisations, including political parties, in my life, but I have to say that in few cases have I been moved by passion. It has come about normally by accident, or I have been pushed by somebody who has said, "Do me a favour and come along to this meeting". Often, getting involved without any great commitment has led to my being very interested and continuing the involvement long after the pressure from friends has subsided.
	I agree with the point made by the noble Baroness that we should not see volunteering as some kind of passionate activity, with everybody having to be motivated by passion and no one having to be incentivised. It is different from being told, "You, you and you will volunteer". When my noble friend Lord Judd felt that he could not resist the volunteering request, he knew that there was a penalty, which presumably was not necessarily that he would be put on charges, but that something would be held against him in relation to his service by the same NCO. It was therefore an invitation that he could not refuse. We are not doing that in the Bill. People who do not wish to volunteer will still qualify as citizens. They will take a decision based on their understanding of what they can volunteer for, which is why the point made by the noble Lord, Lord Avebury, is very important: we must tell people what they can do that will benefit them, as well as society, when they become active citizens. I ask my noble friend to withdraw the amendment, but express my enthusiasm for what is being done by trade unions by nodding my head.

Lord Judd: I know that my noble friend is trying to answer the points, but would he not agree that there is a credibility problem here? For the person applying for citizenship, where is the evidence that any of the people who will be handling his application have ever undertaken voluntary community service? It is not something that is required of people who are born into citizenship in this country. We do not require citizens to participate in voluntary activity. It seems to me that there is a credibility problem that the Government need to address if they want to move forward with this idea.

Lord Brett: During the hour and a half that we spent discussing the previous group of amendments, we identified and talked through this issue, recognised that it is work in progress and gave assurances that it will come to law only after noble Lords have had the opportunity to judge and make a decision. I do not want to reopen that wider debate on this narrow amendment. I will happily discuss this again on Report. In the mean time, I ask my noble friend to withdraw his amendment.

Lord Lea of Crondall: I found this interchange very useful. The reason why I wanted Amendment 83 to stand outside the earlier group is that I thought that it might get lost otherwise. It has given us the opportunity to think about where the misunderstandings have arisen. I say to my noble and very good friend Lord Judd that I was beginning to wonder whether he was moving an amendment to his own Amendment 83.
	I thank the noble Baroness, Lady Falkner, for being so frank in her concerns. One of them is absolutely misconceived, if I may say so, and that is the idea that we are somehow being "partisan"—that was her word—as though anything to do with trade unions implies the involvement of the Labour Party. My noble friend Lord Morris and I have about 100 years of trade union activity between us and we know that that is a total misunderstanding. For 90 if not 99 per cent of the time, it is not like that at all. You represent your members on day-to-day matters. In the context of the Bill, it is nothing to do with being partisan.
	I would put the point the other way around. My concern—I have experience in these matters—is that when people talk about NGOs and this sort of thing, one minute they say, "Of course trade unions are included", but when they set up meetings, the unions are not there. My worry is about being excluded. I am very glad that we have had this discussion. I have had this discussion in many forums. When CPA and IPU delegations have gone to Nigeria, I say, "Are we meeting the Nigeria Labour Congress?". They say, "Why? What has that got to do with it?". I say, "We are meeting so-called NGOs: what is wrong with the Nigeria Labour Congress?". I hope that the noble Baroness, Lady Falkner, with her development experience, will recognise my point.
	I thank the Minister for providing an indication of his intent to invite the TUC to be consulted about what is going on with the design group. That is absolutely proper, and everybody should welcome that.
	Finally, the noble Baroness, Lady Falkner, raised the issue of people living in ghettos, such as single-faith ghettos.

Baroness Falkner of Margravine: I thank the noble Lord for giving way. I do not believe that I used that word; I avoid using it wherever I can. I think that I said "segregated communities".

Lord Lea of Crondall: I am sorry; I wrote it down. This is my last sentence. The debate that we are having is 180 degrees opposite to that point. I thank noble Lords who have spoken and beg leave to withdraw the amendment.
	Amendment 83 withdrawn.
	House resumed. Committee to begin again not before 8.27 pm.

Financial Services Authority
	 — 
	Question for Short Debate

Tabled By Lord James of Blackheath
	What steps they are taking regarding the procedures for referring cases for scrutiny and assessment by the Financial Services Authority.

Lord James of Blackheath: My Lords, I am grateful for this opportunity to seek clarification of the preconditions that might justify FSA scrutiny and review, particularly following the experiences of my earlier career. On three occasions, I have placed before the FSA details of cases that seemed to me to be serious breaches of market regulatory practice and control, and on each occasion I have been refused. On two of those occasions, I have proceeded to take independent action; usually, I hasten to add, with the support of the noble Lord, Lord Dear, who now sits in your Lordships' House and was then the head of the West Midlands Police. On each occasion, I secured custodial sentences for the company chairmen whom I was replacing; one for six years and one for two years.
	The third case is even more concerning, as it represented a serious security hazard for the country. It unearthed a practice of the IRA, which targeted British listed public companies and used them to raise fictitious invoices that could be satisfied by the proceeds of criminal activity by the IRA, thus ramping up the profits of these companies, and with them their stock exchange values, for the benefit of the friends and allies of the IRA, who had been given prior warning to invest in those companies. Each of those three companies collapsed completely, with an aggregate market value of £2 billion. Unlike at the present time, there was no recession, but it was serious enough in its own terms.
	I had to spend £10 million of my shareholders' funds to pursue the first two cases. In each case, that was an unreasonable burden for the official investigating authorities to pass back to the shareholders. There should be some better willingness to pursue investigation on such cases. I got it back, because I managed to sue my auditors for £24 million—but I was lucky. As regards security, their attitude was that it was a financial issue and not one that they could cope with. So we now know at least that James Bond, whatever he is licensed for, is not licensed as an auditor. The FSA's response was that it was a security issue, so I was caught completely between two stools, and nobody wanted to know.
	As things stand from that point of view, I regret very bitterly the old days of the DTI. In the inimitable words of my noble friend Lady Gardner of Parkes, with her Australian twang, "you need a go-to person". The DTI used to have a room full of go-to people to whom you could apply for advice and guidance on such issues. We do not have anything like that now; please give us back a go-to room.
	In each of these cases, a huge amount of investors' money was lost and there was massive, deliberate manipulation of the London stock market to the detriment of investors. Apart from those cases that I have noted, in both of which I acted as chairman, I have no interest to declare. I confirm that I have no participation in the past or present affairs of the principal concern which I wish to place before your Lordships tonight. My immediate and present concern is with another case in which the FSA has declined to become involved, which raises for me the question that if it does not become involved in such cases what is it for?
	The issue here is this: Merrill Lynch and its subsidiaries organised a bid for the equity of a company named Greycoat PLC, and that bid was successful. Merrill Lynch then proceeded to suck out the equity from the company without setting aside sufficient cash to repay the company's bonds, which ranked in priority to the equity. In order to get round the asset covenants in the bond conditions, intercompany loans were put in the Greycoat balance sheet at full value when, in fact, the money had been paid up to Merrill Lynch to repay part of the purchase loans. As the intercompany loan could, thus, never be repaid this treatment was, at best, questionable.
	When the bonds matured there were, as a result of the Merrill Lynch scheme, insufficient assets to repay more than part of the bonds' face value, in spite of the fact that such bonds had been covered over five times by real assets before the Merrill Lynch takeover. The liquidator, on the instructions of the liquidation committee, commenced legal action against the directors but, due to their lack of resources, these together with the remaining assets in the company and allowing for several years of unpaid interest since the default still leave today a loss to bondholders in excess of £35 million when the interest is included. Where is that money today? One must assume that it is in the hands of Merrill Lynch.
	Many of the bonds are held by tens of thousands of smallholders through bond funds, and they will suffer loss as well as the larger holders. As a result, the only way in which compensation can be obtained from Merrill Lynch is through action by the FSA against Merrill Lynch on the grounds of, first, market abuse—leaving the quoted bonds outstanding when bidding for the equity and not putting cash aside for the redemption of the bonds before removing the equity; and, secondly, the FSA's duty to protect investors, particular small ones, against such manipulation. I am informed that when MEPC was acquired in a similar manner to Greycoat, the purchasers ensured that funds were set aside to repay the bonds in full, before the purchasers took out cash. The FSA, which was initially sympathetic when the case was first presented to it, became progressively less interested and finally stopped answering letters and phone calls.
	The FSA's remit in relation to Greycoat must surely relate to the period when it had listed securities and covered only the company's compliance with listing rules and whether there had been market abuse in relation to the securities. As I have said previously, such matters, whether illegal or not, fall within the FSA remit as they were in effect a device to suck resources from Greycoat via the equity in priority to repayment of the bonds which ranked ahead. Surely, that is market and regulatory abuse in any language. A responsible purchaser of Greycoat would have purchased the bonds at the same time as the equity or ensured that there were sufficient funds left in the company to meet repayment obligations.
	At the time of the purchase by Merrill Lynch companies, the Greycoat bonds were covered five times by real property assets, yet the holders received nothing. Sir Callum McCarthy, then chairman of the FSA, wrote to me on 20 December 2007 defending the FSA's position on the grounds that Greycoat had not been a listed company at the time of the alleged offence. I believe his letter contained a crucial error, in that the Greycoat bonds in question were still quoted until 1 October 2003, and payments up to Merrill Lynch companies, which may well have been illegal, were made from September 1999 to May 2003, so they fall directly under the FSA by its own definition. That was during a period when the present FSA's chairman, the noble Lord, Lord Turner of Ecchinswell, was vice-chairman of Merrill Lynch Europe. That does not cause me any concern, and I am sure that it will not concern the noble Lord, Lord Turner, because we have a reputation in this country of very skilled and knowledgeable people rotating between senior positions, and as such they take with them their integrity, commitment and experience. I know that the noble Lord, in his avowed intention to review the terms of the FSA at this moment, would not be in any way influenced by his past association and would ring-fence himself from any investigation that took place.
	Callum McCarthy replied to me further on 12 March 2008, stating that the FSA's remit in relation to Greycoat is limited to its compliance with the listing rules and whether market abuse has been committed in relation to the securities. I can see no reason to doubt that the purchase of the equity in the market, and then the denuding of the company of its assets to the detriment of the quoted bonds left outstanding, is an appalling case of market abuse judged by Callum McCarthy's own criteria, in that Greycoat remained a listed vehicle throughout the key period.
	This issue is not less outrageous for being a fairly simple matter. Legally, the bondholders ranked ahead of the equity and were protected by the assets. However, over the period, those assets changed from being tangible properties to being an intercompany loan, given a parent that itself had no assets. Subsequently, after a majority of the assets had been sucked out of the company, Greycoat defaulted on its bonds. The intercompany loans proved worthless, because the parent had used those funds to repay the initial loan to Merrill Lynch together with a substantial profit, which is presumably where the funds remain today.
	By Callum McCarthy's own definition, I submit that the FSA rules were severely breached by Merrill Lynch as, I also contend, was the case in examples I quoted earlier, which were refused. I now call on Her Majesty's Government to give clear guidance as to the due process and preconditions required to trigger a proper FSA scrutiny and review in such cases. It could hardly look for a better case on which to start than the one of Merrill Lynch and Greycoat.
	Given the present state of our national economy, it is now time to seek a clear signal that can be shown to the market in general as to what an FSA is for and what it will do to regulate matters in future. I suggest that a good starting point would be to demonstrate this by initiating the long-overdue scrutiny of the Greycoat-Merrill Lynch bondholder scandal, and initiating the required legal process to obtain compensation for the bondholders from the Merrill Lynch companies.
	This is the first time that I have ever introduced a quick, short debate. I had assumed that I had a minute at the end in which to wind up. However, as I see I do not, I shall give my last minute now, if I may. I thank all noble Lords who intend to speak in this debate this evening. I hope that we will now receive prompt consideration by Her Majesty's Government of the outstanding issues regarding clarification of FSA reference terms and particularly moving for the FSA to initiate the appropriate legal process for the Greycoat-Merrill Lynch case.

Lord Smith of Clifton: My Lords, I congratulate the noble Lord, Lord James of Blackheath, on initiating this highly topical debate. I found the specific experiences that he described most illuminating. Regulation of the financial services sector must become much more effective in the future, as I am sure the noble Lord, Lord James, will agree. The current crisis has clearly revealed the weaknesses shared by the Treasury, the Bank of England and the FSA to monitor and supervise the activities of the City of London. But, as I have remarked previously in the House, that does not absolve in the slightest degree those bankers and other financiers from their responsibility in bringing about the crisis in the first place—not that they, for their part, seem to recognise their culpability and publicly fully and unequivocally apologise for that. In that regard, it is good to see in today's Evening Standard that Mr Stephen Green, chairman of HSBC, has apologised for the unwarranted, out-of-control bonus system that has occurred in the City.
	The noble Lord, Lord Turner, the chairman of the FSA, trailed last week that there is to be a "regulation revolution" in how the authority will work in future. He was also frank enough to admit that he would not have predicted the crisis in which we are all now engulfed, and that the FSA's past record was unsatisfactory. We eagerly await the imminent publication of the FSA's plan for its future mode of operation.
	As has been remarked by Robert Peston and other authoritative commentators, the future UK economy will be very different from that which obtained during the previous three decades. Privatisation, and the self-centred greed culture that was its inevitable concomitant, dictated public policy during that era. All that, perforce, will now have to change given the unprecedented increase in state intervention and investment of public money deemed necessary to prop up those institutions previously regarded as the quintessence of capitalism. How times are changing. As I have remarked before in your Lordships' House, it gives a quite different complexion to the term "private/public partnership". In their original manifestation, PFIs were a rip-off in terms both of public accountability and value for money; now, the new types of PFI—the bail-outs to the banks and other industries—will be a total drain on the taxpayer.
	It is clear from the continuing arrogance and stubbornness of the bankers themselves and other financiers in hedge funds and the like that there will have to be much closer regulation by way of scrutiny and assessment; the public's universal anger demands no less. It is imperative that the FSA and other regulatory bodies take the strongest action if public outrage is to be contained. Two rigorous policies must now be pursued. First, there must be a step increase in the criminal prosecution of those directors and senior managers whose conduct has flouted the provisions of the Companies Act 2006. My Oral Question last week to the noble Lord, Lord Myners, sought to elicit how many such prosecutions are in train and I await his promised response. In yesterday's Observer, Andrew Rawnsley's column was entitled,
	"These bankers are lucky that they are not going to jail".
	Along with Sir Ken Macdonald, the former DPP, I fervently hope that the guilty ones will soon be sentenced to serve long terms of incarceration. The FSA, the serious fraud squad and the Serious Fraud Office have not shown the zeal that is needed to root out the perpetrators. The authorities in the USA, France and Ireland have shown much greater energy in this regard. Will the Minister say whether the relevant UK agencies are showing enough determination? I echo the sentiments expressed by the noble Lord, Lord James, in that regard.
	Secondly, the FSA must be vigorous in policing excessive remuneration packages by enforcing its code of practice. Since entering your Lordships' House in 1997, I, together with the noble Lord, Lord Lea of Crondall, and the late Lord Dormand of Easington, have regularly asked Questions about "fat cat" pay. Until very recently, there were no critics from the Tory Benches; they kept very quiet for fear of upsetting their financial backers. Successive Ministers—at least five, I recall—parroted the same complacent reply that it was up to shareholders to deal with such enormities. It was rather worrying that in answer to a question today on bonus payments for the directors of Network Rail, the Transport Minister, the noble Lord, Lord Adonis, said that it was not for him to interfere in those bonuses, even though Network Rail is a wholly government-owned body. I was going to congratulate the noble Lord, Lord Myners, on being the first Minister to condemn such rewards until it was reported over the weekend that the thinking behind his rhetoric had not influenced his initial endorsement of Sir Fred Goodwin's pension package.
	It is not an easy task for the FSA and other regulators to devise smart policies that achieve effective supervision and policing of the recidivists in the City while at the same time avoiding the over-reaction of a Sarbanes-Oxley type that occurred in the USA following the Enron debacle. We must hope that the noble Lord, Lord Turner, and his colleagues are up to that formidable task.

Viscount Eccles: My Lords, I do not intend to follow the remarks of my noble friend Lord James or the noble Lord, Lord Smith of Clifton. I have never had any reason to initiate procedures aiming to involve the FSA in following up a problem. Indeed, I rather think that I never would have done because my indirect impression is that the FSA is of little account. It has not managed to establish itself with a personality and a track record and has made a bad start to its seven years' existence.
	What steps are being taken? A major management change has occurred. The new chairman, the noble Lord, Lord Turner, has been in place for not quite six months and the new chief executive, Hector Sants, has been in place for some 18 months. As your Lordships will know, last week they appeared before the Treasury Select Committee down the other end of the Corridor. As I think has already been said, the chairman promised fundamental change amounting to a revolution. Whenever I hear about revolutions, my mind turns to Edmund Burke and I become suspicious. Like him, I do not really believe in revolutions. Institutions have a life of their own. They make a start, which may be a good or bad one, but, above all they operate—as does the FSA—under a long and complicated Act of Parliament. Although we have had much discussion in your Lordships' House recently of financial stability, interestingly it is not mentioned in the Act which sets out the FSA's four objectives: market confidence; public awareness; protection of consumers; and reduction in crime. They are expanded in the next section in what I can only describe as very imprecise language. Indeed, it is a feature of the FSA's language that it is in general imprecise and even woolly.
	I think that it is fair to compare a regulator with a policeman. The Act tempted the FSA to become Dixon of Dock Green and not the CID, and the FSA fell for that temptation. But it gets worse than that. The objectives are qualified. The FSA is to be careful because others running institutions also have responsibilities. It is to be proportionate and it is to work out whether any of the costs incurred as a result of its regulation exceed the benefits. It is to be wary about competition. It is to encourage competition, not to reduce it, and to remember that London is very important internationally. Finally, it is to encourage innovation. Of course, we all know where innovation has led us. You can imagine the dialogue between the FSA and one of the larger financial institutions in which the FSA makes its points and the larger institution says, "But I thought you were supposed to be the gentlemen of the light touch and to keep your hands off us". I think that the FSA accepted that and became PC Plod interested in relatively small fines and not Inspector Morse. It is no wonder that the FSA says:
	"There are many situations where our statutory objectives are potentially at odds with each other".
	That is a bureaucratic euphemism for saying "We have been given a muddle and we don't quite know how to solve it".
	Last week, the noble Lord, Lord Turner, was for driving through the middle of these problems with the "revolution" and the "fundamental change". At the heart of what he was saying was that there should be less process and less bureaucracy. Or was he really saying that in addition to the process and the bureaucracy there was a need to have an understanding of the system as a whole, a detailed evaluation of the position of large financial institutions and a willingness to reach judgments about impending risks and the likely pattern of events? If he is to be as bold as that, he does not have a particularly good inheritance. What he inherits are 2,500 inward-looking people who have been trained to see the trees rather than the wood. A massive cultural shift would be needed to achieve what the noble Lord, Lord Turner, promised the Select Committee last week. Of course, many staff would find that massive cultural change very uncomfortable and quite possibly unacceptable.
	In the discussion in the Treasury Committee as to whether or not the evidence given by the chairman and the chief executive meant that the FSA was or was not fit for purpose, the chief executive almost wondered aloud as to whether his chairman's vision was within the statutory remit as it existed in the 2000 Act. That is a very good question. The Act is not fit for purpose if the view of noble Lord, Lord Turner, of the FSA role in the tripartite structure is correct. Of course he may try it. Who would object if he tried it anyway? However, the question would then be: how much progress will he make? The FSA's outstanding need is the interpretation of the highest order of market intelligence. That is unlikely to be available within the FSA. Surely, therefore, it would be a better bet not to increase numbers, as is being suggested, but to spend the money on high-level advice from those closer to the market and to the way in which the operators in the market behave, particularly when under pressure.
	The FSA may be able to raise its game. Given its first seven years, it will not do so from within. Its chairman would do better to streamline the organisation and to look for the help that he will need from wherever he can find it.

Lord Oakeshott of Seagrove Bay: My Lords, this is an interesting but in some ways slightly awkward debate in the way that it was introduced. I heard the noble Lord, Lord James, say that unfortunately he did not have time to answer, but, as we do not have many speakers, if we had some time at the end, I encourage the Minister to allow the noble Lord, Lord James, to perhaps spend a minute or two winding up. His speech raised some interesting points, but I did not quite get the drift—perhaps I was not concentrating properly—of his suggestion that the regulation or responsibilities of the FSA should change.
	I declare an interest as a pension-fund investment manager for the past 32 years, and my firm has been regulated by the FSA since its inception.
	If I understood the general proposition of the noble Lord, Lord James, in so far as he made one, he suggested that some responsibility should be removed from the FSA. I was not entirely sure to whom he was suggesting it should be given. If I am right, we on these Benches would not agree with that. Certainly, there have been many failures. We do not believe that these matters have been investigated nearly rigorously enough, but taking that responsibility away would not solve anything. There is a need for much more effective co-operation between the FSA, the other authorities and the police, and a much more vigorous and rigorous attitude to enforcement by the FSA.
	On the detailed cases that the noble Lord raised, although I have some idea, it would be helpful to have the names of those companies and events so that we can be fully aware of the matter and look at it—in particular, the names of the target companies in which the IRA was involved. I imagine that one of them might have been Wace; none the less, it would be useful to have a bit more detail, so that we can learn from it.
	The noble Lord talked about the Greycoat case in some detail; I know a bit about that as well and it is not a happy story. The noble Lord makes a powerful case that that should be looked at again. I was also aware that the noble Lord, Lord Turner, worked for Merrill Lynch for part of that time and, like him, I am sure that the noble Lord will distance himself from it, but I ask the noble Lord, Lord Myners, if he will bring the things that are being said tonight to the FSA's attention. I hope that he will undertake to find out from the FSA who is looking into this matters, which would be helpful, since that clearly would not be appropriate for the noble Lord, Lord Turner. I hope that we will have some response. The way that the bondholders, rather like the minority shareholders, were treated requires further examination. If, as the noble Lord, Lord James, said, the FSA's trail ran cold and the authority did not seem very interested, it was probably taking a very narrow view of its responsibilities.
	This is not a general debate on the FSA, but it is very topical, and the way that the FSA carries out its responsibilities was discussed in an interesting and frank way by the noble Lord, Lord Turner, when he was before the Treasury Select Committee last week. What he said, although significant, was somewhat overshadowed by the furore about Sir Fred Goodwin's pension, which I do not intend to discuss tonight. It is relevant to the debate that the noble Lord said to the Select Committee of Gordon Brown's watch at the Treasury:
	"'All the pressures on the FSA was not to say: why aren't you looking at these business models, but why are you being so heavy and intrusive. Can't you make regulation a bit more light touch? We were supervising people like HBOS within a particular philosophy of the way you do regulation which I think, in retrospect was wrong'".
	That was a quote from the Independent on Sunday. The article continues:
	"His views, which no one in Government has had the brass neck to contest, vindicate Paul Moore the HBOS whistleblower, and support the thesis that history will probably conclude that the trail of easy credit and light-touch regulation responsible for the present crisis leads to Gordon Brown's front door".
	I agree entirely with that fair statement on the legacy of light-touch regulation and the failure over the past few years.
	Like, I am sure, the noble Viscount, Lord Eccles, I have also looked at the Act regarding the way that the FSA in my view is not properly complying with paragraph 10 of Schedule 1 to the Financial Services and Markets Act 2000, whereby it is meant to make an annual report to the Treasury on the extent to which, in its opinion, the regulatory objectives have been met. For the first few years, the FSA's annual reports complied with those requirements, but they have not in recent years. I have been helpfully briefed by an ex-FSA employee who is, in fact, a former member of the Treasury's original Bill team which, as he puts it,
	"is why I am so familiar with the legislation".
	He points out that there is a clear dereliction of the FSA's statutory duty to give such a report. I ask the noble Lord, Lord Myners, why it has not done so. The noble Lord has not been here for all that time, so perhaps he can look into why the Treasury has not picked it up, if he is not aware of it. The FSA's public documents—the annual report, business plan and website—even in 2009 almost redefine the aims. The website states that the FSA is a statutory body set up under the Act,
	"which sets out four statutory objectives".
	However, the FSA does not say what those objectives are—the noble Lord already listed them—and sets out its aims under three broad headings. I fear that we are almost in a situation whereby the FSA has decided that it knows better than Parliament what its objectives should be and has redefined them in a much vaguer way. In particular, they are: the need for market confidence and public awareness; the protection of consumers; and, specifically, the reduction of financial crime. Obviously, those objectives are very specific and very carefully worked out by Parliament, and they are very relevant to the way in which the noble Lord introduced the debate.
	The noble Lord, Lord James, raised one or two interesting examples. I have stood back and thought over the past few years about where we have got to. I do not necessarily think that the noble Lord, Lord Turner, would agree with me, but I should be very interested to know the view of the noble Lord, Lord Myners, who has been actively involved in these matters as a participant and has regulated much more, even more so than as part of his responsibilities over the past few weeks. My view is that the Financial Services Authority has spent far too much time over the past few years making little people tick little boxes. It should have focused much more energy on putting big questions to the big fish and making them give proper answers or change their ways.

Lord Howard of Rising: My Lords, I am grateful to my noble friend Lord James for introducing this debate. The role of the FSA needs examining, especially in the present turbulent economic climate, and the at times disturbing contribution by my noble friend will be a most useful step in this process.
	The more one examines what the FSA does, the more one asks what its real purpose is—or, as my noble friend Lord James put it, what the FSA is for—and how it has benefited the country. How does the Minister, who is an experienced businessman capable of distinguishing success from failure, measure success by the FSA? Can he tell us what the purpose of the FSA is, whether it has succeeded, and what changes he will be discussing with the noble Lord, Lord Turner?
	Is the only purpose of the FSA to examine the minutiae of how businesses in the financial services are administered? If so, why is such a huge number of staff needed? At 31 March 2008, the FSA had 2,665 employees. At that time, the Treasury had a mere 1,451 full-time staff. The FSA needs nearly double the number of employees to monitor the City as the Treasury needs to run the finances of the entire country, and I see from the press that the FSA is looking to employ more people. What on earth do they all do? Or is the FSA responsible for drawing attention to banks taking potentially dangerous positions on their own account or through their loan portfolios? If so, given the dismal debacle of recent years, has the system put in place by the Prime Minister been a failure? In general terms, can the Minister tell us the criteria that he sets to judge success when he scrutinises the performance of the FSA? How often, indeed, does he meet the FSA to review progress?
	When the Act which created the FSA went through Parliament, my noble friend Lord Saatchi pointed out that the FSA was being made policeman, judge, jury and executioner. Furthermore, the FSA has immunity from damages. As a result of my noble friend's intervention, at least an appeal procedure was introduced, but this is a cumbersome process and there is little incentive to go through with it, not only on the ground of cost but due to the danger of creating a powerful enemy which could, with ease, destroy a career.
	With the benefit of hindsight, does the Minister agree that the result is an organisation with too much power and too little accountability, and, as so often with organisations with these characteristics, the tendency is to avoid difficult problems and go for easy solutions.
	The FSA has, in its present existence, issued fines of more than £107 million. A number of these fines were for administrative errors which the culprits themselves had reported to the FSA and where there were no findings of deliberately wrongful conduct or systems failure. Can the noble Lord tell is whether the £14 million of bonuses paid to FSA employees related to fines collected? If so, can he explain how justice can be thought to be fair if those responsible for administering it, like some team of inner-city wheel-clampers, personally benefit from their actions? Goodness knows what the cost to the public has been of the many bureaucratic rules imposed on the industry by the FSA, some of which defy common sense and are all too easy to circumvent by those who wish to do so. Those rules were referred to by the noble Lord, Lord Oakeshott.
	However, the FSA also needs to be looked at for what it has not done. Examples were given to us today by my noble friend Lord James of where the FSA refused to take action. Surely these cases would come under the statutory objective of reducing financial crime. More importantly, the FSA appears to have ignored the trouble being stored up by banks overgearing, with flaky finance, to buy dubious assets. It is not rocket science to see that this was a recipe for trouble. There were enough commentators pointing out the dangers—not least the Bank of England, which gave a number of warnings. There is little point in an organisation such as the FSA if it is not able to work this sort of thing out for itself. The quality of assets may have been a challenge but overgearing and excessive reliance on short-term and volatile finance should have been easy to spot.
	Certainly the former and the present Prime Ministers asked for banks to be treated with a light touch, but there is a difference between a light touch and turning a blind eye to danger signals. Can the noble Lord categorically deny reports in the media that the Prime Minister suggested the employment of Sir James Crosby, who, when at HBOS, ignored warnings of risks from his own senior staff on the basis that the allegations had been investigated—but by whom? They had been investigated by the very auditors who had given the situation a clean bill of health in the first place. Does not auditing your own audit pose a conflict of interest?
	The Prime Minister and his loyal Deputy Leader now say that the pension of Sir Fred Goodwin is unacceptable. His pension may be indefensible but it is not illegal and was agreed by the Treasury. Can the Minister confirm that he personally discussed and agreed to the severance package? Since 1689, this country has been subject to the rule of law. Now Miss Harman, one of Her Majesty's Executive, says that, although the pension was lawful under the law established by Parliament and approved by government, she must now "step in" to block it in what she calls a "court of public opinion". Since when were hue and cry and people's courts part of British justice? Do we exist under the rule of law or the rule of the mob? Sir Fred deserves censure, but the storm being whipped up by Labour serves only the cynical purpose of diverting attention from the culpable policy failures of Ministers.
	I ask the noble Lord to tell the House whether it was the duty of the FSA to warn of the impending collapse of our banks—one of the most catastrophic failures of recent times. In pursuit of its statutory objective of maintaining confidence in the financial system, what role did the FSA have in promoting the merger of what Mr Daniels told the Treasury Select Committee in another place was a perfectly viable bank, Lloyds TSB, and the basket case, HBOS?
	Did the Prime Minister take advice from the FSA at any stage in his talks with Sir Victor Blank? Did anyone anywhere in the FSA warn the Government at any stage that for Lloyds TSB to take over HBOS was to condemn hundreds of thousands of small shareholders, many of them pensioners, to lose both capital and income? If not, does the noble Lord, Lord Myners, agree that it would be wise to scrutinise that failure by the FSA?
	I ask the noble Lord, Lord Myners, specific questions about the deal between the Government and the Royal Bank of Scotland. Can he confirm whether he or his officials were in touch with either the Royal Bank of Scotland or Sir Fred Goodwin about the terms on which Sir Fred Goodwin left the bank's service? Were the Chancellor of the Exchequer and the Prime Minister informed of those discussions, and was their approval sought at any stage? Does he agree with his right honourable friend Ms Harman that for those involved in financial failures to receive pensions is unacceptable? If so, does that doctrine also apply to the FSA, Ministers and other public officials involved in supervising the failures of the financial system?
	Will the Minister answer those points as well as the troubling questions put by my noble friend Lord James? If he cannot answer them now, will he undertake to write to me with the answers?

Lord Myners: My Lords, I am grateful to the noble Lord, Lord Howard of Rising, for the last sentence of his speech because, otherwise, I was fearful about how I could possible answer what must have been about 40 questions. However, I shall seek to answer the more important ones, but not in a way that detracts from the important message and issues raised by the noble Lord, Lord James.
	Before I proceed, I would like to explain briefly the different roles of Government and the FSA and remind noble Lords of the FSA's independence, which prevents me discussing the specifics of the case raised by the noble Lord, Lord James. The Government are responsible for the legal and institutional framework, as well as for setting the boundaries of FSA regulation. We are also responsible for appointing FSA board members in accordance with public appointment processes, those appointment processes applying to the appointment of the chairman and vice-chairman of the FSA.
	The Financial Services and Markets Act 2000 gives the FSA four objectives, one of which is to reduce financial crime. In meeting its objectives, the independence of the FSA is vital to its role as supervisor of financial services firms and as an investigating and enforcing authority. Its credibility, authority and value to consumers would be undermined if it were possible for the Government to intervene in its decision-making processes. It is for that reason that I cannot comment in detail on the case under discussion or direct the FSA to reconsider the case.
	The noble Lord, Lord James, asked about the FSA's decision-making process around taking action on the basis of information that it receives. Like other bodies with investigation and enforcement powers, the FSA needs to have both independence and discretion in deciding which cases to pursue and which of its tools to use. Noble Lords will appreciate that the FSA receives many potential cases for consideration. It takes a risk-based approach in selecting which cases to pursue, considering factors such as consumer detriment; evidence of financial crime; indications of a more widespread problem; and the risk of undermining public confidence. If members of the public feel that their concerns have not been adequately addressed, they have access to the FSA complaints scheme.
	It may be worth mentioning that the Financial Services and Markets Act restricts the FSA's ability to disclose information that it has received from firms, and its freedom to criticise firms, unless it has followed due process. It may be frustrating to complainants, but in the interest of fairness and to reduce the risk of jeopardising any further action, the FSA does not normally disclose the fact that an investigation is ongoing. I hope that the background that I have set out is helpful in explaining how the FSA, as an independent regulator, operates in considering cases brought to its attention.
	If I may, I shall make two general observations on the issues raised by the noble Lord, Lord James. The first is that all authorities investigating cases face choice in deciding which cases to pursue. For example, does the evidence presented suggest that there is a potential case of rule-breaking or even criminal activity? In making that judgment, any investigating authority will do its best to make a proper assessment based on the information that it has been given. That assessment may change if additional information becomes available. Hence the importance of the FSA keeping a record of the cases that it has assessed.
	The second observation is more wide-ranging and concerns whether the FSA's powers are appropriate and whether, for example, the scope of market abuse is widely enough defined. As part of an ongoing review of the regulatory framework, the latter point is one that my officials will be considering, along with the FSA, in the upcoming European Commission review of the market abuse directive from which the UK regime mainly derives. The noble Lord, Lord James, may want to offer his experience in that wider debate during the Commission consultation that is expected to start later this month. I would be happy to alert him to the consultation once it has been published, if he would find that helpful.
	I turn to points made by other contributors. The noble Lord, Lord Smith of Clifton, made a cogent and coherent series of observations about financial regulation and behaviour in financial markets, which are consistent with his many comments on those issues to this House. I thoroughly agree with him that there must be a moral basis for people's behaviour in industries and activities that depend on trust. The noble Lord, Lord Turner of Ecchinswell, the chairman of the Financial Services Authority, will produce his report on 18 March on his conclusions on the FSA and the changes that need to be made. That will address a number of points also made by the noble Lord, Lord Howard of Rising.
	From my perspective, I think that there needs to be a zeal and determination in the pursuit of those who have done wrong. There also needs to be a strong set of requirements about behaviour and conduct that are deserving of trust. The issues of remuneration that have been referred to will be at the heart of some of the recommendations made by the noble Lord, Lord Turner. Supervision and the behaviour of individuals must always be the first port of call in stopping poor judgment and bad behaviour. There are limitations to what regulation can achieve, as we have seen in other jurisdictions, which do not operate under our FSMA but under their own particular regulatory processes, which have also been found to have shortcomings in the recent global crisis.
	The noble Lords, Lord Smith and Lord Howard, raised questions about Sir Fred Goodwin. I am happy to have the opportunity of saying something on the matter. Noble Lords will remember that I was involved over the weekend of 10, 11 and 12 October in decisions relating to the capitalisation, funding and liquidity of Britain's banks; discussions which, if they had not been successfully completed, would have made it difficult for us to have seen markets open on the Monday morning with the confidence that emerged as a result of the decisions made.
	I understand that the board of the Royal Bank of Scotland agreed with "regret", in its words, that Sir Fred Goodwin should leave on Friday 10 October. I did not meet with Sir Tom McKillop and the senior independent director, Mr Bob Scott, until the evening of Saturday 11 October. In my meetings with the senior independent director and the chairman of both the Royal Bank of Scotland and HBOS, I was accompanied by a partner at Slaughter and May acting on behalf of the Treasury. In those meetings, I used a standard script. I said that in exchange for support, we would expect there to be no rewards for failure. We would expect the boards to minimise the cost of any severance that would arise and we would expect those departing from the banks to mitigate to the maximum possible amount the cost of their departure.
	I also added that I respected legal commitments and the rule of law—here I addressed the point made by the noble Lord, Lord Howard of Rising—and that I would not expect any company to break a legal and contractual agreement to which it was committed. I was assured that the pension arrangement for Sir Fred Goodwin reflected 30 years of service and no mention was made to me of discretion in that respect. No sum was mentioned, although Mr Bob Scott told me that Sir Fred's pension would be a large sum. However, that would come as no surprise to Members of this House, who have studied the large pension rights that self-appointed chief executives and leaders of our financial institutions have negotiated for themselves with their boards of directors. I believe that I was only advised of the sum of the pension a few days later. I did not seek approval from the Prime Minister or the Chancellor of the Exchequer because I was not being asked to give approval. To pick up the term used by the noble Lord, Lord Smith, I did not endorse the pension of Sir Fred Goodwin; indeed, I have taken action to persuade Sir Fred Goodwin, as a matter of honour and decency, taking into account the huge losses that that bank has now reported and the substantial dependence it has placed on public funds, to make a significant gesture in terms of forgoing his pension or a major part of it. However, that must be a matter for Sir Fred Goodwin.
	I repeat that I do not believe that it would be incumbent on a Minister to encourage directors of the board of any company, bank or any other industrial enterprise, to seek to break a legal agreement. That said, UK Financial Investments, the body that holds the investment in Lloyds and RBS, has written to Sir Philip Hampton, the new chairman of the Royal Bank of Scotland, seeking a full explanation of the decision-making process and, in particular, ensuring that all directors of the Royal Bank of Scotland were fully informed. But for the avoidance of doubt, I did not approve Sir Fred's pension, I was shown no papers, I was given no advice because no decision was sought from me in respect of his pension. I am grateful to the noble Lords, Lord Smith and Lord Howard, for providing me with an opportunity to set the record straight that I did not expect to receive this evening, but at which I have leapt with relish and alacrity.

Lord Smith of Clifton: My Lords, I am grateful to the noble Lord for giving way. I am grateful also for the full explanation he has given, which I think I fully accept. I am sorry that I implied that he had endorsed the pension arrangements of Sir Fred Goodwin. I thank him very much for his explanation.

Lord Myners: My Lords, I thank the noble Lord for that. His use of terminology was entirely correct if he had been guided by the media. I have welcomed the opportunity of setting the record straight—as, indeed, will also occur at various meetings in the near future of the Treasury Select Committee.

Lord Oakeshott of Seagrove Bay: My Lords, it has obviously been a very difficult few days for the Minister, and it reflects well on him that he took the trouble to set that out in that way. Certainly from this Front Bench I am happy to accept that explanation. He did, though, say that it is not for a Minister to seek to break a legal agreement of this kind. So could he please explain why the Leader of the House of Commons sought to do that yesterday on television, and had she consulted either the Chancellor or the Prime Minister before she did so?

Lord Myners: My Lords, I am not in a position to know whether there was any consultation beforehand; nor do I believe that the Leader of the other place said that there should be a breach of the law. I can only repeat my own position which I made as a very clear statement to the noble Lord, Lord Stevenson, and Sir Tom McKillop in the meetings that I had with them on that long evening of Saturday 11 October.
	I have gone on for rather longer than I should have done but I appreciate noble Lords' indulgence in that respect. I thank the noble Viscount, Lord Eccles, for his wise advice on the scale of the challenge that the noble Lord, Lord Turner, faces, and no doubt the noble Lord, Lord Turner, will take that into account. The Financial Services and Markets Act does give the FSA a financial stability objective in respect of its need to maintain market confidence. On the comments of the noble Lord, Lord Oakeshott of Seagrove Bay, I am advised by the Table that the noble Lord, Lord James of Blackheath, is not able to make a closing comment after I have spoken, but I would be very happy to give way should he wish me to do so. Would that be helpful?

Lord James of Blackheath: My Lords, that is an invitation that I cannot refuse. I note the noble Lord's reasons why he cannot give guidance to the FSA on any action which it might now take in the case that I highlighted to it. However, I hope that the noble Lord, Lord Turner, has heard enough this evening to decide that he himself would like to give consideration to the matter, and to feel that the matter is worthy of the FSA's further review.

Lord Myners: My Lords, I am aware that the noble Lord, Lord James, has already written to the noble Lord, Lord Turner. I will certainly be drawing the attention of the noble Lord, Lord Turner, to Hansard. I will, to use a phrase used by the noble Lord, Lord Oakeshott, ask him to revisit and consider whether in the past the FSA may have taken too narrow a view of the case to which the noble Lord, Lord James, has drawn the attention of the House. However, I must leave that in the hands of the FSA.
	I think that I have answered a fair number of the questions from the noble Lord, Lord Howard of Rising, but I am conscious of the fact that we are about to be time-expired. I can only say in respect of a couple of other points that the FSA was not involved in promoting the HBOS-Lloyds TSB merger. We must remember that those were transactions endorsed by the shareholders and recommended by the board of directors. I have already dealt with the appointment of Sir James Crosby. I would be horrified if bonuses paid at the FSA were in any way related to fines. Wheel-clamping mentality is not the way forward. On the issue of employee numbers, I believe that this is a matter that the noble Lord, Lord Turner, will no doubt consider. However, noble Lords will perhaps reflect on the fact that the cost of any shortcomings in regulation is very expensive. Therefore, we have to weigh resource against risk.
	In closing, I congratulate the noble Lord, Lord James, on an extremely good speech raising an important issue and stimulating a rather interesting debate, which I myself have partly hijacked to get certain things off my chest about Sir Fred Goodwin's pension.

Borders, Citizenship and Immigration Bill [HL]

Bill Main Page
	Copy of the Bill
	Explanatory Notes
	Amendments
	3rd Report from DP Committee
	5th Report from Constitution Committee

Committee (Second Day) (Continued)

Amendment 83A not moved.
	Amendment 84
	 Moved by Lord Wallace of Saltaire
	84: Clause 39, page 31, line 43, leave out subsections (2) to (5)

Lord Wallace of Saltaire: Here, as in other parts of the Bill, we are concerned about the breadth of the powers that the Bill gives to the Secretary of State. It will perhaps benefit the Committee if I speak to Amendments 85 and 85A as well as to Amendment 84 in order to speed matters. Clause 39(2), for example, gives remarkable and unacceptable powers to the Secretary of State. It says nothing about whether or not the Secretary of State can increase or reduce the powers given. The Delegated Powers Committee says of Clause 39(2) that it inserts a new section into the British Nationality Act 1981,
	"under which regulations may be made which amend the length of the qualifying time period—both the default qualifying period, and the period by which it may be reduced for those who meet the activity condition".
	As drafted, this clause also allows the Secretary of State to increase the period allowed. That seems to us to be far too flexible and the sort of thing that needs therefore to be constrained.
	The merit in Amendment 85A is that it adds a further degree of advice and therefore an extra degree of autonomy in enabling the Secretary of State to consider whether completed activities are of benefit to the individual. We are immensely concerned by the breadth of powers given to central government in this Bill, as in so many other Bills that come before the House. The idea that the Secretary of State will be able to determine whether the Women's Institute in Upper Medlicott or wherever is a viable body for which a young Muslim woman can volunteer stretches the imagination. My daughter is a civil servant and I recognise that civil servants in London are tremendously efficient and far-sighted, but their ability to check on what is happening in Upper Wharfedale, Upper Wensleydale or wherever is relatively limited. The purpose of Amendments 84, 85 and 85A, therefore, is in different ways to add brakes on the autonomy of the Secretary of State in determining the circumstances under which these things are pursued.
	I have to say more strongly that, if the Government are not able to bring back a more restrictive version of page 32, line 3, many of us will be strongly motivated to vote against that at Report. As Amendment 84 suggests, we are extremely unhappy with the laxity of flexibility given to the Secretary of State by the whole of this section. I beg to move.

Lord Haskel: If Amendment 84 is agreed, I cannot call Amendments 85 and 85A because of pre-emption.

Baroness Hanham: Amendment 85A extends the discussion that we had earlier. It attempts to establish who is going to be in charge of deciding where volunteers are invited to go and what the process is by which it is then known that they have volunteered: they will presumably have had some box ticked by the referee in order to tell somebody that they have undertaken the voluntary work in order to presumably have another box ticked by the UK Border Agency.
	The Minister said that the paper on the design group was in the Library. It is not. I wonder, therefore, if we could arrange to have copies sent to us as soon as possible or to make sure that, if it is meant to be in the Library, it is in the Library. The noble Baroness, Lady Howe, asked for it during the dinner break and it was not there. Perhaps we could be directed towards it, as I think that it is very important.
	Also, the Minister answered only indirectly the question that I raised earlier about how long applicants would have to do voluntary work for. I think that he said at the end of his remarks that it would be done all the way through from the pre-probationary stage right to the end of probation. However, there must be a time limit because applicants cannot be expected to do four years of voluntary work in order to reduce their time limit by two years. Perhaps we could have an answer on that.
	As the noble Lord, Lord Wallace of Saltaire, said, a lot of unanswered questions remain. In order to decide whether this is going to be of any benefit to anybody—the country, the applicant or the people ticking the boxes to make sure that they have their bits of paper in the right place—questions have to be answered about the right place for those bits of paper and who will make the final decision on whether someone has achieved what is required to enable them to be fast-tracked.

Lord Roberts of Llandudno: When much of this voluntary activity is to be devolved to Scotland, Wales and Northern Ireland, is it appropriate that the Secretary of State here in London should have the final word on the type of volunteering that would be acceptable in the devolved areas? If this amendment comes before us again, should we not devolve that decision to the Assembly in Wales and the Parliament in Scotland so that those who are in touch with the grass roots will be the people who decide whether an activity is of benefit to the individual or the wider community?

Lord Brett: Let us discuss the missing paper first. I can give noble Lords an assurance that it was placed in the Library. Indeed, I was rather surprised, not to say perturbed, when I heard that the noble Baroness, Lady Howe, had not been able to get a copy of it during the dinner break. I asked my colleagues in the office to check that it is indeed in the Library. It may have taken a little finding, but it is there, and I can assure the noble Baroness that it is available as we speak. As I said earlier, it gives a lot of answers that show at least how far we have got in relation to our discussions at great length before dinner. Hopefully enhanced by our communications twixt now and Report, it will form the basis of our discussions at that stage.
	The noble Baroness asked how long the volunteering should last. It will be on the initiative of the applicant who can state on the form applying for probationary service that active voluntary service has been, is being or will be undertaken, so it will be driven by what the applicant seeks to do. If they can say that they have been volunteering for a number of years before they get to active citizenship, and the claim can be refereed and proved, they will have demonstrated their commitment. It may be that the referee feels that more evidence is needed to justify the applicant having met the criteria for sustained volunteering, particularly from the voluntary organisation that the applicant has been assisting, but this should be seen not in terms of having to complete a course of action but as a proper act of volunteering.
	I turn to the point made by the noble Lord. Questions of migration policy, the UK Border Agency and everything that goes with them are national rather than regional policy issues. We have already said that the organisations monitoring and therefore tick-boxing the applicants will, in many cases, come from the 87 local authorities that have already formed a body for dealing with this. They will come from the larger charities and organisations that have banded together to provide the monitoring service. In that sense, the scheme will be local in nature. I cannot see a role for the Assembly and the Scottish Parliament in this, given that a unit is to be formed to assist in migration policy, which, as I have said, is a national area.
	I assure noble Lords that we will respond with further information as soon as we can. Indeed, I am strongly reminded by the comments of the noble Baroness—if I was not by our one-and-a-half hour debate before dinner—that this is not seen by noble Lords to be developed sufficiently to the point at which they would sign off on it, as they say. I have also given an assurance that, when the design group has completed its work and the Government seek to put the details into regulations, it will be necessary for them to be affirmed by a resolution of the House. I hope, therefore, that the amendment can be withdrawn at this stage so that we can return to the debate on Report, by which time, I hope, we will have a much more comprehensive picture available to us.
	Again, I apologise for the fact that there may have been some confusion about the availability of the paper, which I can confirm was placed in the Library in the latter part of last week. It should have been available to Members because it would have been helpful to our debate before dinner.

Baroness Hanham: Before the Minister sits down, can we expand this debate and make sure that we clearly understand the amount of voluntary work that will have to be done? It is all right to say that the referee will sign it off, but it is not in the applicants' interests not to know whether there is a minimum or maximum amount that they have to do. One person might get away with a week, whereas someone else might still be flogging it out two and a half years later, and they would both be equitable in terms of the reduction of two years. It is a bit flimsy to leave it so that they do not have to do a specific amount of volunteer work.

Lord Brett: I am not necessarily saying that that would be the case. The design group will work on this. Undoubtedly, the design group will discuss with the organisations that it represents what would be, in each case, a considered amount of voluntary activity. We have to avoid, on the one hand, someone delivering one leaflet for a good cause on one day being equal to, on the other, someone spending lunchtimes helping out at a local community centre two days a week for two years. That is for the design group's consideration and will undoubtedly form part of its recommendations when it has completed its work.

Lord Wallace of Saltaire: I am not entirely happy with the terms in which the noble Lord has answered this debate. Volunteering is, by its nature, a local activity. It takes place within local communities and you are likely to operate, quite often, with local charities. I was thinking, as I sat down, of the Rylstone Women's Institute, which I happen to know well. Indeed, my wife has autographs of all the leading members of the Rylstone Women's Institute from when it first produced a calendar. Noble Lords will know how well it did with that calendar. It is not, except by several degrees, a national organisation; it is very much rooted in the local community. To say that the border agency is a national agency and will therefore deal with larger charities rings all sorts of alarm bells.
	I recall that, when I was engaged in the Offender Management Bill last year, the Government talked again about larger voluntary organisations. It is much more convenient to handle larger organisations than to deal with little local bodies that get in the way. The Conservative Party is these days converted to localism, at least in principle. If we are trying to get active citizenship off the ground at the local level, we must find a better way of doing it. That is my first point.
	Secondly, the noble Lord has not answered the question about the laxity of the drafting of Clause 39(2), which allows the Minister to increase, as well as to reduce, the qualifying period for citizenship. Unless that is tightened up considerably, so that very careful procedures are required before a change is made, we are minded to divide on that on Report. As it stands, it is clearly not satisfactory.

Lord Brett: I thank the noble Lord for the reminder and apologise for not dealing with that question. It will be covered with the second amendment. To return to the first, we are anxious not to exclude small organisations for which people may volunteer. Therefore, one of the suggestions from the paper that is in the Library is that it may mean larger organisations validating the work of smaller organisations if the smaller organisations do not have the resources to do it themselves. Again, local authorities are often candidates for providing that kind of validation, either by granting aid or by having a register of charities in the local authority area. We are anxious to avoid a situation where only large charities are beneficiaries and, indeed, where volunteers can offer their services only to larger charities. We require the agreement, understanding and support of larger voluntary organisations to take smaller organisations under their umbrella and look after them, either on a geographical basis or perhaps on the basis of one form of social or other activity.
	On the point raised by the noble Lord about the ability to extend or reduce the length of time, the simple and brutal point from the Government's point of view is that, as the noble Lord said, the amendment would restrict the power to amend the qualifying periods. I resist the amendment, as it would represent an inappropriate restriction on the Secretary of State's power to develop immigration policy. We live in a dynamic and fast-changing world and it is wholly appropriate that the Secretary of State should have sufficient flexibility within the legislation to react to changes as they happen. I can reassure the Committee that any regulations brought forward that sought to change the qualifying period would be subject to the affirmative procedure. That is the assurance that we offer and I hope that the noble Lord will feel that it is sufficient for him to withdraw his amendment. However, on the basis of what he said, I recognise that he might not simply withdraw it but may well return to it at a later stage. The reassurance that we put before the Committee is that we will follow the affirmative resolution procedure should the Government desire to extend or change in any way the pattern established in the clause.

Lord Wallace of Saltaire: Can the Minister give any assurance on limitations to the Government's thoughts about how much they might, under odd circumstances, wish to extend this period? After all, the Government have signed, but not yet ratified, the convention on naturalisation, which refers to a maximum of 10 years for qualification. Do the Government wish to retain the freedom to extend way beyond 10 years or are there no limitations on the variability that one might introduce under Clause 39(2)?

Lord Brett: The noble Lord is making presumptions that are not necessarily in the Government's mind. We are seeking to have on the face of the Bill the ability, in extraordinary circumstances and in the dynamic society in which we live, to make proposals that will be subject to confirmation under the affirmative resolution procedure. We have no desire at this stage to make any changes; the changes are in the Bill that we have brought forward. It is wrong to presume from the fact that we need an enabling clause that there is any intention at the moment to do anything. However, we do live, and have lived over the past half-century, in extraordinary circumstances of migration. One thinks of the current problems in Zimbabwe and the problems in east Africa and other parts of the world. We simply want the ability to bring the issue forward for discussion and approval without the requirement for primary legislation in the case of extraordinary events occurring.

Lord Wallace of Saltaire: I beg leave to withdraw the amendment.
	Amendment 84 withdrawn.
	Amendments 85 and 85A not moved.
	Clause 39 agreed.
	Clause 40 : Children born in UK etc. to members of the armed forces
	Amendment 86
	 Moved by Lord Thomas of Gresford
	86: Clause 40, page 33, line 3, leave out "on or after the relevant day"

Lord Thomas of Gresford: Amendments 87 to 89 are linked to Amendment 86, which has been tabled by my noble friends Lord Avebury and Lady Falkner of Margravine.
	We move now to consider Clause 40 which relates to children born in the United Kingdom to members of the Armed Forces. Its provisions follow the publication of the Ministry of Defence Command Paper of July 2008, The Nation's Commitment: Cross-Government Support to our Armed Forces, their Families and Veterans. In Clause 40, the Government make provision for those born within the United Kingdom or a qualifying territory, at least one of whose parents is serving in the British Armed Forces, to be born as British citizens. So the clause benefits those who are born after a day to be appointed. It also makes provision for children born in the United Kingdom but not in a qualifying territory after the appointed day, whose parents enter the British armed services while a child is under 18, to register as British citizens subject to the good character test set out in Clause 43.
	Those eligible to serve in the British Armed Forces are British citizens, British nationals other than British citizens, Commonwealth citizens and Irish citizens. It seems very complicated that children should be distinguished according to whether they are born in the United Kingdom or in a qualifying territory, and according to the particular status in the Armed Forces of their parents. If the Government are seeking to be generous in their treatment of the armed services, it would be quite simple to draft a clause which said to parents, "You are eligible to become members of the Armed Forces because of the close ties that you have with the United Kingdom. Your service in the Armed Forces has strengthened those ties and because of that your children will either be born British citizens or be eligible to register as British citizens". That would be a simple way of looking at it rather than the way that the clause has been drafted.
	Amendment 86 would ensure that all those born to serving members of the Armed Forces in the United Kingdom or in a qualifying territory, whether before or after the commencement of the Act, are entitled to be registered as British citizens. The Act specifically reserves entitlement to those born after its commencement. The clause, as drafted, can create a situation where a child born after the provision comes into force may be a British citizen but a child born before the Act comes into force to the same parents is not. The younger brother becomes a British citizen; the older brother does not. Distinguishing between children born before the Act comes into force and those born after is not, in my respectful submission, a sensible provision.
	The first group of children to benefit from the amendment will be those born between now and the appointed day. In case anybody thinks this is an academic point, one has only to look at the Nationality, Immigration and Asylum Act 2002 in which the Government amended the British Nationality Act 1991 so that children born after the appointed day to British fathers not married to their mothers could, on proof of paternity, acquire their father's British nationality. The appointed day did not arrive for four years so all those children born before the day that the Act came into force when the Bill was passed did not have the benefit of those provisions. A four-year delay took place. You can imagine that in the future children who were born in the interim period will be campaigning because they were born on the wrong side of the blanket, if I may use that expression, and I hope your Lordships are following me. If you are in the forces, what do you do? Do you refrain from having children until the Home Office decides that it is time for this Act to be passed?
	The second group of people to benefit from Amendment 86 will be those already born in the United Kingdom or a qualifying territory to a mother or father who was a serving member of the Armed Forces at the time of their birth. The provision comes into force, as I have already commented, on or after the appointed day. I am referring to children who were born before the Bill was passed. To be serving members of the Armed Forces, their parents will have had to have been eligible in the sense that I have described and have built on that connection through their service. Why should their children not also benefit? Amendment 86 removes the starting point, the appointed day, whenever that should be—when the Home Secretary, the Secretary of State or whoever decides that these provisions should come into force.
	The purpose of the second amendment is to ensure that the application for registration need not be made while the person is still a child. The third amendment would ensure that the parents must have been in the Army while the UK-born child was under 18, if a person is to register under this clause. The purpose of these amendments is to ensure that UK-born children whose parents served in the British Army while the child was still a child may register even when they have ceased to be children themselves, when they are adults at the time of the application. By removing the words, "while still a minor", the amendment would continue to require that the parents were serving during the child's minority but would not require that the person be a child at the time of application for registration. The amendment is crafted so that the children of these people have to register, and under Clause 43 registration will be subject to the good character test, so this does not mean that they will immediately be British citizens, merely that they will be entitled to apply for registration, subject to that test.
	We think that this makes some sense of the way in which the Government have drafted these provisions. I am sure there is a great deal of good will behind the Government's purpose, and I hope that that extends at least to considering in some detail the submissions that I have made to the Committee now. I beg to move.

Baroness Butler-Sloss: I support Amendment 86. It would be unjust to the children of members of the Armed Forces if, by the accident of their being born the year before this clause came into effect, a child who was born a year later had a right that his elder brother or sister did not have. That has a degree of discrimination against children who are equally children of members of the Armed Forces. I cannot at the moment see the logic of that, other than just to reduce the number of people who would be entitled to become British citizens. In the context of a clause that is intended to be generous, this shows a lack of generosity to child members of the family.

Lord Brett: I hope to be able to reassure the noble Lord in such a way that he will understand why the Government believe that this is an unnecessary amendment, though I am grateful to Members of the Committee for raising this important issue. The question here, as the noble Lord said, is what happens to children before we commence Clause 40. To deal with the question of delay, and he cited substantial delay, it is intended on this occasion to implement Clause 40 by order in late 2009, following commencement of the final parts of the Armed Forces Act 2006. Those born before commencement continue to benefit from citizenship at birth or by registration under Section 1(3) of the British Nationality Act 1987. I shall explain.
	The amendments would enable them to apply for registration as British citizens as if they would have qualified had the new clause been in place when they were born. To reply to this, I should explain that Clause 40 does not provide the children of members of the Armed Forces with a new entitlement to British citizenship; it clarifies an existing eligibility and puts it on a clear statutory footing. So, a child born in the UK today would be recognised as a British citizen if either of his parents was a member of the British Armed Forces at the time of his birth. Equally, if that child is born in the UK today and one of his parents then enlists, we will register him as a British citizen if the application is made while he is still a child.
	The amendments propose that an application or registration can be made by an adult if, when they were a child, their parent became a member of the Armed Forces. However, Section 1 of the British Nationality Act 1981 is principally concerned with the British citizenship rights of minors. Furthermore, there are alternative avenues for an adult who is or was resident in the UK to acquire British citizenship, most notably under Section 1(4) and Section 6(1) of the 1981 Act. It is also important to note that those persons born since 1983—when the British Nationality Act 1981 was commenced—to a parent who then became a member of the Armed Forces are already captured by the current parameters of Section 1(3) of that Act, because their parent has, for nationality purposes, been treated as settled from the point of joining the Armed Forces.
	The reason for this hinges on the definition of "settled" used for the purposes of Section 1 of the 1981 Act. Under Section 1(1), a child born in the UK or qualifying territories is automatically a British citizen if either parent is settled when he is born. If a child is born in the UK and does not gain British citizenship under that section, but one of his parents subsequently becomes settled here, that child can apply to be registered as a British citizen under Section 1(3) of the Act. The application must be submitted before the child's 18th birthday and, if the child is aged 10 or over, he must be of good character. If those conditions are met, he is entitled to British citizenship.
	Those serving in the British Armed Forces are exempt from immigration control under Section 8(4)(a) of the Immigration Act 1971 and have, as a matter of policy, been treated as settled for nationality purposes since commencement of the British Nationality Act 1981. This means that any child born in this country today will be eligible for British citizenship under either Section 1(1) or Section 1(3) of the 1981 Act, depending on whether the parent is in our Armed Forces when the child is born, or enlists later. We will continue to apply this policy in practice until Clause 40 has commenced, which means that there should be no children missing out on British citizenship because of their birth date. I hope that reassurance is helpful to the Committee, and that it allows the noble Lord to withdraw his amendments.

Baroness Butler-Sloss: If we already have all that anyway what, then, is the point of the proposed new subsection (1A)? Forgive me, but I have not understood that.

Lord Brett: I am sorry, but I did not catch the latter part of the question. Noble Lords may have noticed that I am getting a cold.

Baroness Butler-Sloss: If children have these rights in any event, what is the purpose of Clause 40(2) in inserting the proposed new subsection (1A)? What does it give that is not there already? I am sorry; I have not appreciated that.

Lord Brett: I think we are just placing established policy on a statutory footing, but your Lordships made a point about the fear that one brother or sister born a year later than another, for example, would be disenfranchised. I am trying to provide reassurance that that is not the case.

Lord Thomas of Gresford: As I understand it, the proposed new subsection that is being introduced deals with persons who are not settled in the United Kingdom but who become members of the Armed Forces. I hope the Committee will forgive me if I consider the Minister's reply in Hansard in some detail to see whether we shall return to it. I am most grateful to the noble and learned Baroness for her support on this; like her, I am puzzled by the purpose of these provisions. If it is indeed the intention, as the Minister said, that they should be brought in before the end of this year, why would the Government resist? Why would they need the provision,
	"on or after the relevant day",
	in Clause 40(4), which is the subject matter of Amendment 86, at all? If the Minister will forgive me, I will take this away and read at leisure what he said. Perhaps the Minister would like to add something.

Lord Brett: I seek to assist the noble Lord and make the matter absolutely clear to him when he reconsiders the position set out. The purpose of Clause 40 is to clarify the rights in law which I have just mentioned. They do not depend on the definition of "settled", which involves a test of ordinary residence that is subject to case law changes. That may or may not help the noble Lord. He is a far more distinguished expert on law than I shall ever be. I am grateful for his withdrawing the amendment.

Lord Thomas of Gresford: I beg leave to withdraw the amendment.
	Amendment 86 withdrawn.
	Amendments 87 to 89 not moved.
	Clause 40 agreed.
	Amendment 90
	 Moved by Lord Avebury
	90: Before Clause 41, insert the following new Clause—
	"Certain persons without other citizenship
	In section 4B(1) of the British Nationality Act 1981 (c. 61) (acquisition by registration: certain persons without other citizenship) at the end of subsection (1) insert—
	"(d) British National (Overseas)"."

Lord Avebury: When Hong Kong was being handed back to China in 1997, concern was expressed by the governor and the Hong Kong Legislative Council that the status of non-Chinese people could be uncertain. In the 1985 agreement, the PRC accepted only the ethnic Chinese population of Hong Kong as its nationals, and it was feared that non-Chinese British nationals would be left de facto stateless when they lost their BDTC status in June 1997. That was taken up here and in another place and, in February 1997, the then Home Secretary announced that provision would be made to allow solely British ethnic minorities of Hong Kong,
	"to apply for registration as British citizens, giving them right of abode in the United Kingdom, after 30 June 1997".—[Official Report, Commons, 4/2/07; col. 553W.]
	The Prime Minister confirmed that a couple of days later, adding that those concerned were potentially stateless and now had a nationality.
	Following this decision, under the British Nationality (Hong Kong) Act 1997, some 9,000 members of Hong Kong's ethnic minorities have been able to register as British citizens. Unfortunately, the remaining few hundred do not qualify because of an arbitrary residence test. British nationals (overseas), British overseas citizens, British subjects and British protected persons who apply under the 1997 Act must have been ordinarily resident in Hong Kong on 4 February 1997. In 2002, when Section 4B was inserted in the British Nationality Act 1981, the ordinary residence test was abolished for otherwise stateless British overseas citizens, British subjects and British protected persons. Amendment 90 would put solely BNOs on an equal footing with persons holding one of those lesser categories of British nationality.
	At the time of the passage of the 2002 Act, a senior official wrote that the reason for the exclusion of BNOs from Section 4B was that British nationals overseas were excluded from the registration entitlement because the vast majority of them held or had held another nationality, and those who did not were believed to be already satisfactorily catered for in terms of the 1997 Act. I am afraid that that was not correct, because, on the qualifying date, some were abroad on temporary assignment, some were studying overseas, some minors were abroad with their parents, and there were a few cases where a child was living in Hong Kong, but, because his parents were abroad, the child was not deemed to be ordinarily resident of Hong Kong.
	The elimination of the ordinary residence condition is consistent with general principles set out by Home Office Ministers. On a separate point related to BDTCs, the noble and learned Baroness, Lady Scotland, specifically told me:
	"We would prefer not to base our policy on the application of notional registration dates and it seems unnecessary to do so".—[Official Report, 26/2/06; col. WA40.]
	When I have raised the plight of these people on previous occasions, Ministers have said that all of them have the right of abode in Hong Kong and that they regard that position as satisfactory. Technically, they are wrong, because, under the basic law, an ethnic minority BNO can lose the right of abode—and, in fact, quite of them have lost it, as I have pointed out in correspondence with Ministers. They are theoretically subject to deportation by the director of immigration, and would lose all their civic rights and privileges.
	A more critical error by the Home Office was to wrongly equate right of abode with nationality. Since 1997, solely BNOs have been living on Chinese territory as aliens. They have no country or nationality of their own. Britain, the country of their passport, refuses to accept them. It is only right that we equalise the position of solely BNOs with that of British overseas citizens, British subjects and British protected persons. To do this, Amendment 90 brings BNOs into Section 4(b) of the British Nationality Act 1981, which covers otherwise stateless British overseas citizens, British subjects and British protected persons.
	The amendment would also remove two bizarre paradoxes in our nationality law. First, it penalises any member of the British ethnic minority in Hong Kong who took steps to retain their British nationality prior to the handover. An otherwise stateless former Hong Kong BDTC who registered as a BNO needs to meet the arbitrary residence test that I have described, whereas if he failed to register as a BNO, he automatically became a British overseas citizen on 1 July 1997 and does not need to satisfy any ordinary residence test to register for British citizenship. Why should the law penalise those who took steps to remain British? Surely we ought to fix that.
	Secondly, the child of an otherwise stateless BNO becomes a BOC at birth, giving him the right to register for full British citizenship even though his parents are denied the same entitlement.
	Before Labour came to power in 1997, the present Justice Secretary, Mr Jack Straw, said:
	"A British national overseas passport carries with it the right of abode nowhere. The claim that this amounts to British nationality is pure sophistry. Common sense and common humanity demand that we give these people full British citizenship".
	Amendment 96 gives effect to Government commitments that children will not be born stateless to persons from the solely British ethnic minority. In 1984, a Home Office memorandum stated unambiguously:
	"Firm assurances were given by the Government during debates that no BDTCs would become stateless as a result of the agreement with China, and neither would their children born after 1 July 1997".
	In the Second Reading debate on the Hong Kong Bill, at the end of 1984, the then Home Office Minister, Lady Young, told me:
	"The Government's position is that no former Hong Kong BDTC nor any child born to such a person, should be made stateless as a result of the amendments envisaged in the Bill".—[Official Report, 14/3/85; col. 237.]
	In October 1987, the Home Office published a Command Paper stating that,
	"the underlying principle is that no one who loses BDTC status as a result of the order, nor any child born after 1 July 1997 to such a person, should be stateless".
	We have at least three policy statements on the record that no one who lost BDTC status as a result of the handover of Hong Kong to China, nor any child born to them, should be stateless. However, the provisions for reducing statelessness in Article 6 of the Hong Kong (British Nationality) Order 1986 have resulted in children being born stateless to former Hong Kong BDTCs. Amendment 96 will rectify this breach of faith and eliminate the statelessness of children born to former Hong Kong BDTCs. It will entitle the beneficiaries to acquire British overseas citizenship, including all stateless children born on or after 1 July 1997, consistent with the arrangements in the 1986 order.
	To show noble Lords that this is not something that I have dreamt up that has not happened, I will quote one example—I sent the noble Lord copies of the correspondence. Ajab Taha Barma was born in Hong Kong on 30 July 2007 to parents who were both Hong Kong-born BDTCs otherwise than by descent. The parents lost their BDTC status on 1 July 1997 by virtue of Article 3 in the 1986 order, and the young Ms Barma has been denied British nationality because of the quirk in our nationality law that this amendment seeks to rectify. She does not qualify for BOC citizenship under any of the automatic provisions for conferral of this status to the children of former Hong Kong BDTCs, because they do not cover children of Hong Kong BDTCs whose parents qualified as British citizens under the British Nationality Hong Kong Act 1990. By registering her grandparents, their descendants were made stateless. In March 1985, Lady Young, then Minister, assured me that,
	"the Home Secretary has discretion under Section 27(1) of the British Nationality Act 1981, if he thinks fit, to register any minor as a British Overseas Citizen. It would of course be open to any future Home Secretary to make use of this provision in relation to the descendants of non-Chinese BDTCs in Hong Kong if he were satisfied that in any particular case the circumstances justified it".—[Official Report, 14/3/85; col. 238.]
	Ajab's parents applied for British overseas citizenship on her behalf under Section 27(1), quoting the policy commitments already mentioned, but were refused on the perverse grounds that she has no connection with British territory. This amendment serves to put the matter right.
	We have reneged on the firm commitments to the solely British ethnic minorities and made children such as Ajab stateless, in spite of numerous ministerial statements and command papers that said that that could not happen. That should now be rectified, and this amendment does so in a manner consistent with provisions for others in the same group. I beg to move.

Lord Hylton: I pay tribute to the persistence with which the noble Lord, Lord Avebury, has pursued this particularly difficult and disabling matter. I had a letter from one of the persons who fall into this category, who is living in London. I referred the writer of the letter to the noble Lord, so I hope that something positive comes out of it.
	There can be no doubt that statelessness is a very severe disability. In that connection, I ask whether so-called Nansen passports are still available, which used at one time to be issued by the Red Cross. If they are available, to what extent do they remove the disabilities that we are all complaining about?
	As a final point, perhaps the Minister could tell us what use, if any, has been made of the discretion, which we believe the Home Secretary to possess.

Lord Thomas of Gresford: I should like strongly to support my noble friend Lord Avebury in his campaign to right a very considerable wrong. I spent a great deal of time in Hong Kong in the 1980s and early 1990s, and I was aware at that time of the very considerable fear felt by those who were likely to lose their nationality and become stateless under the provisions of the 1997 handover.
	I draw to the attention of the Minister the report of the noble and learned Lord, Lord Goldsmith, in February 2008—his review of citizenship entitled, Citizenship: Our Common Bond. He considered the position of British nationals overseas who have their status by virtue of their connection to Hong Kong and were not affected by the changes in 2002. He said:
	"They hold the only extant and significant form of British citizenship which is not full citizenship and does not allow an unqualified right to enter and remain in the UK".
	It is a very poor form of nationality granted to these people if they cannot even come to the United Kingdom and stay here. He said:
	"The only option which would be characterized as fair would be to offer existing BN(O) holders the right to gain full British citizenship".
	So it is recognised by the noble and learned Lord that that is something that should be tackled. The qualification that he put in was that he had been told by somebody that it,
	"would be a breach of the commitments made between China and the UK in the 1984 Joint Declaration on the future of Hong Kong",
	and that it would not be possible to vary the terms of that treaty. But when one examines the exchange of memoranda that occurred at that time, one sees that the Chinese memorandum said only:
	"Under the Nationality Law of the People's Republic of China, all Hong Kong Chinese compatriots, whether or not they are holders of British Dependent Territories citizens' Passports, are Chinese nationals".
	So if you are ethnically Chinese, you automatically had Chinese nationality. The memorandum continues:
	"Taking account of the historical background of Hong Kong and its realities, the [... Chinese Government] ... will, with effect from 1 July 1997 permit Chinese nationals in Hong Kong who were previously called 'British Dependent Territories citizens' to use travel documents issued by the Government of the United Kingdom for the purpose of travelling to other States and regions. The above Chinese nationals will not be entitled to British consular protection in the Hong Kong Special Administrative Region and other parts of the People's Republic of China on account of their holding the above-mentioned travel documents".
	That is all that they said on the topic, and that really has nothing to do with the plight of these people who have been left in limbo or of their children, as my noble friend pointed out. It is time that we did something to right that wrong. The amendment that my noble friend has brought forward this evening can do that and should have the Government's support.
	Hong Kong is a very special place. In any event, on a cold March day such as today I cannot imagine that many people living in Hong Kong who come into this category would prefer to come to this country or to attempt to make their living here in today's economic climate, but at least they should have the right to do so. We have an obligation that must be fulfilled. Far too long a period has passed since 1997 without the injustice that has been done to those people being put right.

Lord Brett: I am grateful to noble Lords for raising this issue concerning the former colony of Hong Kong. I join the noble Lord, Lord Hylton, and others in commending the endurance of the noble Lord, Lord Avebury, and his commitment to end what he sees as an injustice. However, I am afraid that I must resist these amendments as we believe that British National (Overseas) citizens, who gained that status from a connection with Hong Kong, and British overseas citizens resident in Hong Kong are already fully catered for within British nationality legislation. We also believe that associated provisions in law to prevent the statelessness of those persons, and their children, formerly resident in Hong Kong are sufficiently comprehensive as to make statutory change unnecessary.
	Section 4B of the British Nationality Act 1981 was introduced in 2003 to benefit particular categories of persons because of the historical implications of the break-up of the British Empire. It is our position that it would not be appropriate to extend this to further groups. The status of British National (Overseas) was introduced to cover those British dependent territories citizens from Hong Kong who may not have acquired Chinese citizenship when sovereignty was transferred to China in 1997. This status was provided for under the British Nationality (Hong Kong) Order 1986. Those who could not register as a British National (Overseas) could become a British overseas citizen if they would otherwise be stateless. This also applied to their children if they would otherwise be stateless following the partition of Hong Kong.
	The Government at the time recognised that there may be some who would not become Chinese citizens after the handover, and so also provided in the British Nationality (Hong Kong) Act 1997 for those British nationals who were ordinarily resident in Hong Kong both on the date of application and immediately before 4 February 1997 to become British citizens.
	The Government accept that there may be some who cannot benefit under this provision, as they have not maintained ordinary residence in Hong Kong. These people, however, having established themselves elsewhere in the world through choice, will have a route to another citizenship. Section 4B of the British Nationality Act 1981 was introduced following the abolition of the special voucher scheme to allow those who would have been eligible to come to the UK under that scheme from East African countries, had it continued, to do so as a British citizen following their registration.
	We do not intend to extend the registration provisions of Section 4B to British Nationals (Overseas). Most of them will already have a right of abode in Hong Kong or elsewhere. This contrasts with the difficulties faced by other types of British nationals around the world, many of whom do not have a right of abode in any other country. Presumably the people that noble Lords wish to include, apart from those I have already stated, are those who have not maintained a link with Hong Kong through ordinary residence and, therefore, may not be able to register.
	The majority of unsuccessful applicants under the 1997 Act are currently from people with a Nepalese connection who are not living in Hong Kong. This is because they do not meet the requirement of being ordinarily resident in Hong Kong, which is critical to registration under the 1997 Act. In the 12 years since that Act was passed, it could be argued that such people had the opportunity to settle elsewhere and acquire citizenship and thereby are not stateless. This includes the possibility of acquiring British citizenship or another nationality by naturalisation on the basis of residence.
	Amendment 96 also proposes to enable British overseas citizenship to be acquired by a person born stateless to a parent who held British Dependent Territories citizenship before 1 July 1997, and therefore to a parent who neither acquired British National (Overseas) citizenship by registration or British overseas citizenship under Article 6(2) of the relevant order. This would in effect mean that any person born stateless to a parent who had a connection with Hong Kong when it was a British dependent territory could register as a British overseas citizen. We do not believe there to be many children born to former British Dependent Territories citizens in Hong Kong who have not acquired another nationality.

Lord Avebury: I do not know whether the Minister had a chance to read the letters that I sent him, but the case that I quoted of Ms Barma is precisely on that footing—that the parents tried to register the child using the discretion in Section 27(1) and they were refused. The Minister has a copy of the letter of refusal, so I cannot see how he can maintain that it was possible for people to apply for discretionary leave.

Lord Brett: I note the noble Lord's comments. It may be that I led him to rise a moment or two before he heard something which would be more to his satisfaction in the statement I am completing.
	There are also extensive avenues by which a child born stateless can acquire a form of British nationality in particular areas. I was going on to say something in light of the comments made, which I shall deal with after I have first dealt with the point made by the noble Lord, Lord Hylton. We have no knowledge of Red Cross passports and their role, although I shall inquire to find out what they are and, I hope, send the noble Lord a note on that. I shall also send him a note on the question of where the discretion of the Secretary of State has been applied.
	Returning to the main issue, I note that the noble Lord, Lord Avebury, raised a number of individual cases, on which I cannot, of course, comment. I am happy to set out the policy which has been applied when deciding on particular categories of cases. I continue to offer him and other Members of the House an opportunity either to visit the UK Border Agency nationality group in Liverpool to see how the caseworking process in action is operated and to discuss how decisions have been reached. If noble Lords are unable to travel to Liverpool, we would be happy to provide the facilities for such a meeting in London.
	On the broader topic that the noble Lord raised, I am happy to consider his points and return to them at Report, following discussion. With that, I hope that he will be prepared to withdraw his amendment.

Lord Hylton: In his reply, the Minister mentioned east African Asians. Would I be correct in deducing from that that the Government fear that if the amendment were to be accepted, large numbers of people would want to come from Hong Kong to live here? The noble Lord also said that those affected could apply for residence or citizenship elsewhere. Where in the rest of the world does he seriously think that that will happen? On what grounds should other states accept applications for either residence or citizenship?

Lord Brett: On the noble Lord's last point, people who have chosen to reside in other member states of the United Nations or beyond will have residential status in those states and may indeed have the opportunity to take on the country's nationality. On this occasion, I was not declaring a policy or a premonition on behalf of the Government; I was simply stating the historical facts relating to the trials and tribulations of nationality over the past half century. I think that we can usefully return to this matter on Report, when we may have had the opportunity to discuss individual cases. Perhaps then we can minimise our differences to arguing not about the facts but just about the policy.

Lord Avebury: I do not know whether we can usefully return to this matter on Report. After all, we have now been arguing the case for 22 years since the Hong Kong (British Nationality) Order 1986 and the handover of Hong Kong to the Chinese in 1997, and we have not been able to get anywhere with successive Ministers, although we have had undertakings from them. I am most grateful to the noble Lord, Lord Hylton, and to my noble friend Lord Thomas for their support for the propositions that we have advanced.
	As the noble Lord, Lord Hylton, said, statelessness is a very severe disability and it is monstrous that the Government should be visiting this on a small number of helpless people who, they know, cannot retaliate. We are not talking about a vast number of people; we are talking about the people who failed the ordinary residence test, not because they had left to go to some other country, as the Minister pretends, but because they were absent on short-term assignments, were studying abroad or were children whose parents had taken them out of the country. The fourth category that I gave was the children who were in Hong Kong on the date of the handover but who were not counted because their parents were abroad and therefore they were deemed not to be ordinary residents.
	The Minister did not reply to any of those points. He just ignored them and said that all these people must have departed Hong Kong to live permanently in another country. That is completely false. He also ignored everything that I said about the assurances that had been given by successive Ministers that no person who lost BDTC status as a result of the handover of Hong Kong to China, nor any child born to such a person, would be made stateless. Therefore, these people are not fully catered for, as the Minister pretends. The provisions are not sufficiently comprehensive to make these amendments unnecessary, as we have shown, and I can produce other examples if he wishes. I do not want to have to go to Liverpool to produce examples of people who have been made stateless, because everything is in the correspondence. If the Minister asks his colleagues at the Home Office, he will find that there are plenty of letters from me about these individuals who have been made stateless, either because they were not ordinary residents at the time or because they could not fulfil other conditions.
	We are not talking about thousands of people; we are talking about a very few people who were BNOs and who should have been granted the privileges that the Government promised them at the time. The Government have undoubtedly reneged and failed a small but significant minority of people. Although I shall withdraw the amendment, I do so with—

Lord Brett: I am feeling slightly wounded. I did not say that I was ignoring the argument. I said that the noble Lord had put forward a number of cases and I suggested a meeting—it does not have to be in Liverpool; it can be in London—so that the methodology, the casework and the reason why the department arrived at certain decisions which it believed to be in the spirit of our policy could be discussed with him and whoever else wished to be involved. I shall take on board for consideration the points that he makes at such a meeting. I do not believe that that is ignoring the issue. It is recognising that there is a point that needs to be investigated. I also offered the assurance of a further discussion on Report, so I feel slightly wounded. I repeat that we are not ignoring the noble Lord's argument; I am suggesting that it has to be taken on board and, in the light of investigations, we can look again at the problem that he has set out. If that is not sufficient, I apologise, but that is as far as I can go on this occasion. I hope that it will be sufficient to enable the noble Lord to withdraw the amendment without feeling that he is being totally ignored.

Lord Avebury: That is not sufficient to mollify me, because I am not talking about individual cases, I am talking about the principle. I have already enunciated the three principles laid down by previous Ministers that have now been reneged on. We can talk about individual cases until we are blue in the face, and there has been masses of correspondence. It is not necessary for us to sit around a table to talk about that. I will do that if it will convince the noble Lord that what we are saying is correct, but we want to eliminate the problem of statelessness among the original BNOs who did not manage to get the full citizenship to which they were entitled and which they had been promised by successive Governments.
	We want not just consideration of individual cases but a reaffirmation of the promises made by successive Governments now being reneged on by this one. I have no alternative but to withdraw the amendment, but I do so with great reluctance.
	Amendment 90 withdrawn.
	Clause 41 : Descent through the female line
	Amendment 90A
	 Moved by Lord Avebury
	90A: Clause 41, page 34, leave out lines 11 to 15

Lord Avebury: By way of background to the amendment, I should perhaps remind the Committee that until 1983, when BNA 1981 came into effect, British fathers could pass on their nationality to children born overseas, but mothers could not. The BNA had a feeble shot at that discrimination by providing that a child born to a British mother and a foreign father could be registered as a British citizen while a minor, although not all did so.
	We could never understand the rationale for extending the rights only partially from father to mother in proceedings on the Nationality, Immigration and Asylum Act 2002. We persuaded the then Government to move the cut-off date from 1 January 1983 back to 7 February 1961, but that still left families with siblings born on either side of the dividing line, so the younger ones could register, but the older ones were excluded.
	We also argued that our amendment to remove the cut-off date would enable the Government to lift the reservation that they maintained on the Convention on the Elimination of All Forms of Discrimination against Women. That must be the acid test of whether Clause 41 is good enough in its present wording. Article 9.2 of CEDAW provides:
	"States Parties shall grant women equal rights with men with respect to the nationality of their children.".
	The UK entered a reservation to that on the basis of what we inaccurately described as certain temporary or transitional provisions, which continued from 1 January 1983 for 28 years since your Lordships approved the BNA 1981.
	Unfortunately, as in many other clauses, the Government have made Clause 41 so convoluted that it is hard to see the wood for the trees. The critical question is whether the Government are confident that, with the passage of the clause, we will be able to withdraw the reservation that we entered to CEDAW and whether we intend to do so. I ask the Government to reply to that question now.
	One thing is clear: it will be more difficult for those born after 7 February 1961 to register and those difficulties extend to the new beneficiaries born prior to that date. The reason for that appears to be that no distinction was made in the 2002 Act between mothers who were British citizens by descent and those who were full British citizens when they gave birth. Subsection (3)(c) does not clarify, as the Explanatory Notes pretend, but restricts the rights of British mothers to transmit British citizenship to their children and to require a person wishing to take advantage of the clause to establish that his mother was not a British citizen by descent at the time of his birth, in some instances some 50 or 60 years ago.
	That reintroduces an element of discrimination between mothers and fathers who were British only by descent at the time of the child's birth under Section 5(1)(b) of the British Nationality Act, which continued in force beyond the February 1961 cut-off date in the 2002 Act. The child of a male British citizen by descent born in a foreign country was automatically a British citizen by descent immediately his birth was registered at the local British Consulate, but the child of a female British citizen by descent had no such right and now cannot claim equal treatment because of the involved wording of the clause. If that is incorrect, I hope that the Minister will say so, but as we read it, the Bill may not allow us to lift our reservation to CEDAW.
	So while we are grateful to the Government for getting rid of the February 1961 cut-off date, the removal of which the noble Lord, Lord Filkin, kept telling us, when he was the Minister, would cause the world to fall apart—we never quite got an elucidation of how that would happen—we are disappointed that the Government have gone to enormous lengths and added new levels of complexity to the clause simply to exclude the small number of children who might otherwise have benefited from being descended from mothers who were British citizens by descent.
	Amendment 91 deals with persons who would have been entitled to register under Clause 41 but are now dead. If that person, who could not have acquired British nationality under existing legislation, had given birth to a child in the UK after 1 January 1983 but the mother was not settled at the time, the child would not have been born British. The amendment would allow the child to register as a British citizen. The child would have a close connection to the UK because her grandmother was a British citizen and her mother, if she had lived, would also have been entitled to British citizenship. Since it has been only since 1983 that children born in the UK are not British by birth, those who could benefit from the amendment must be 26 years old at the most and many of them who wish to do so would no doubt have gained British citizenship by other routes, so the number of beneficiaries would be quite small. I beg to move.

Lord Brooke of Sutton Mandeville: I would like to imply that I have remained here through curiosity born of sharing the blood of four Liberal forebears in the House of Commons between the Great Reform Bill and the Great War. My motivation has been curiosity, born of that blood, to see what the continuous flow of a dozen groups of Liberal Democrat amendments would be like. We are now almost half way through that group.
	Of the four who served in the House of Commons, I suspect that I am closest to the third, my great grand-uncle, who was elected as Liberal MP for Wakefield, but on arrival in the House of Commons decided that he preferred Disraeli to Gladstone. He was honourable enough not to cross the Floor, but did not stand a second time.
	My reason for having lingered, however, is different. At the time of the 2002 legislation and in 2006 the noble Lord, Lord Avebury, asked me to support him in his efforts to secure the substance of the clause. My part was modest, but I warmly congratulate him on his constancy and his achievement. I should perhaps add that in the words of Lycidas, the noble Lord and I were,
	"nursed upon the self-same hill,"
	and attended an Oxford college that is almost three-quarters of the way to its millennium. It is a tribute to our mutual college that we were coached in stamina and taught to take a long view. It is happy to find our goal at last achieved, even if it is in a somewhat complicated mode. I am happy to have served as a foot soldier in the platoon of the noble Lord, Lord Avebury.

Lord Hylton: It seems to me that a glance at the Explanatory Notes on Clause 41 can lead to only one conclusion: namely, that British citizenship law is in as great a need of consolidation as immigration and asylum law.

Lord Brett: I realise that, looking at Clause 41 the basic intention does not appear obvious. However, the length of the clause is not an attempt to muddy the water; it is simply needed to cover all the previous pieces of nationality law that have been forged in an applicant's lifetime, which echoes the contribution of the noble Lord, Lord Hylton.
	This change will benefit those born before 1948 and even those born before the 1914 legislation, if such people are still among us. The amendment suggests, in the absence of evidence for a particular application of action, that the Government should assume that a mother would have taken the necessary action to enable her child to acquire British citizenship had she been able to pass on her citizenship status by descent but for previous discrimination.
	The Government's reservation on the Convention on the Elimination of Discrimination against Women is not to our knowledge linked at all to this clause. However, new Section 4C(3C) is intended to ensure that Section 4C covers only provisions that are about a child automatically acquiring British nationality from their parent, rather than any provision where the acquisition would have required an application to be made by that parent. This is because we cannot now be sure whether such an application would have been submitted and, even if it had been, whether that application would have been successful. Therefore, this subsection provides that an applicant for registration under Section 4C can rely only on those provisions that depend on the nationality of one or both of their parents and does not depend on an application being made for registration as a person who holds that status.
	New Section 4C(3D)provides that it will not be assumed that any registration or other requirements have been met. There are a number of provisions that enable someone to acquire British nationality if certain requirements are met. For example, Section 5(1)(b) of the British Nationality Act 1948 states that a child born overseas would have been a CUKC if their birth was registered at a British consulate within a year. According to new Section 4C(3D) we will not assume that any such requirement would have been met, had previous nationality law provided for descent from a mother in the same way as a father. It is also proposed to introduce a new registration entitlement for a person born in the United Kingdom or overseas territory, whose parent would have been able to register under Section 4C—as the child of a British mother—but for his or her death.
	For ease, I will focus here on children born in the United Kingdom. Similar provisions apply to those born in overseas territories, although there are slight differences in the routes by which those born in the territories can acquire British citizenship.
	We do not think that there could be many people who would be affected by this amendment. A person born in the United Kingdom before 1 January 1983 would have become a British citizen automatically, unless their parent was a diplomat or enemy alien. A child born after that date will become a British citizen if either parent is a British citizen or settled here. "Settled" is defined within the legislation as being free of immigration time restrictions and ordinarily resident in the United Kingdom.
	Many of those parents who would have had an entitlement to registration under Section 4C had it been commenced before their death would in any case have already been settled in the United Kingdom when their children were born. For example, those parents who were Commonwealth citizens with a mother born in the United Kingdom would have had a right of abode in the United Kingdom or the parent may have naturalised as a British citizen on the basis of their residence in the UK. Others, even though not British citizens, could have acquired settled status here by the time their children were born, such as by acquiring indefinite leave to remain in the UK.
	For those born after 1983 who did not become British at birth because their parent was not settled or British on that date, there are a number of provisions by which a child born in the United Kingdom can acquire British citizenship. Any child born in the United Kingdom after 1 January 1983 who was not a British citizen at birth has an entitlement to register as a British citizen, either if the parent becomes a British citizen or settled in the UK, or if the child lives here for the first 10 years of his or her life, regardless of the status of their parents. If a child does not have an entitlement to registration, an application could be made under Section 3(1) of the Act, which provides for registration at the Home Secretary's discretion. While we would normally expect one of the parents to be a British citizen in order for this discretion to be exercised, a child could be registered if it was deemed to be in his or her best interests. In addition, there are provisions for children born in the UK who would otherwise be stateless to acquire British citizenship, which enable us to meet our obligations under the Convention on the Reduction of Statelessness.
	I note noble Lords' intention in providing for children who might be disadvantaged because of the death of a parent before that parent had an opportunity to register under Section 4C. However, I must point out that this situation would not be unique to parents who might have an entitlement to registration under Section 4C. It is wrong to assume that the parent would have wanted to register as a British citizen under Section 4C before their death. It is also wrong to assume that the parent would have met the requirements of registration under Section 4C, including after 2006 the requirement to be of good character. Furthermore, it is possible, for example, that the child's foreign parent might die before having been naturalised as a British citizen. It is not therefore appropriate to make provision only for children whose parents might have had a faulty entitlement in this respect. However, we feel that there is sufficient provision within the British Nationality Act to allow children to become British citizens. This section will benefit a very small number of people. The majority are already covered and catered for by the legislation. We would therefore be grateful if the noble Lord would withdraw this amendment.

Lord Avebury: If only a small number of children are involved in this matter, why go to such lengths to exclude a few of them by changing the wording in the 2002 Act? The wording of the section that we are discussing excludes certain children, although the Minister did not explain this. He did not say anything about the children of these women who were British citizens by descent, which is what I understood to be the whole point of the involved nature of the amendment compared with what is in the 2006 Act.
	I take issue with the Minister's assertion that this has nothing to do with our reservation to CEDAW. I have already quoted the article in CEDAW that provides that,
	"State parties shall grant women equal rights with men",
	with respect to the nationality of their children. The UK specifically entered a reservation to CEDAW relating to Article 9. That was that,
	"the United Kingdom's acceptance of Article 9 shall not, however, be taken to invalidate the continuation of certain temporary or transitional provisions which will continue in force beyond that date".
	That means the date when the BNA 1981 came into force. It is clear, therefore, that there was a connection between the reservation and the provisions of Article 9, whatever the Minister may say. There may have been other reasons why there was a reservation to CEDAW, but this was certainly one of them.
	I do not understand why, if there was no problem in 2002 on registration, this problem has arisen now. Obviously we will not get to the bottom of that this evening. We will have to look carefully at what the Minister has said and probably return to this matter on Report. Meanwhile, I have to withdraw the amendment.
	Amendment 90A withdrawn.
	Clause 41 agreed.
	Amendment 91 not moved.
	House resumed.

House adjourned at 9.53 pm.